Law Commons^™

Reverse Political Process Theory, Aaron Tang

Vanderbilt Law Review

Despite occasional suggestions to the contrary, the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. From a series of decisions reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, to the more recent same-sex marriage decision based principally on the fundamental nature of marriage (rather than the political status of gays and lesbians), it is now an uncontroversial observation that when it comes to applying the open-textured provisions of …

Hidden By Sovereign Shadows: Improving The Domestic Framework For Deterring State-Sponsored Cybercrime, Eric Blinderman, Myra Din

Vanderbilt Journal of Transnational Law

This Article analyzes the domestic legal framework applicable to state-sponsored cybercrime. The Article describes several instances where state sovereigns perpetrated cybercrimes in the United States. It then outlines the legal framework that the US government utilizes to hold accountable those who perpetrate such crimes. This Article argues that the current legal framework does not have a deterrence effect on sovereign states engaged in such activity and that prosecutors who seek to apply the current framework against state sovereigns or who misattribute the source of such attacks could negatively impact US foreign policy. To remedy these defects, this Article asserts that …

How To Assert State Sovereign Immunity Under The Federal Rules Of Civil Procedure, Calvin Cohen

Vanderbilt Law Review

Twenty years have passed since the Supreme Court announced dramatic changes to the doctrine of state sovereign immunity in Seminole Tribe of Florida v. Florida.' This doctrine prevents "suits by private parties against unconsenting States" in recognition of the state's power to govern itself and its citizens freely, as well as the financial impact lawsuits have on the state's treasury. Since Seminole Tribe, the Supreme Court has-in a series of contentious 5-4 decisions-increasingly allowed this doctrine to immunize states and their officers from suits arising under the federal laws and sometimes even the Constitution. But while the Court has expanded …

The Political Economy Of Jus Cogens, Paul B. Stephan

Vanderbilt Journal of Transnational Law

This Article examines the basis of an asserted jus cogens exception to sovereign immunity. It demonstrates that the vision of jus cogens one embraces depends on background assumptions about the present and future of the international system. A robust conception of jus cogens assumes: (1) that independent judges and tribunals, informed by the views of non-state actors, can identify core international obligations and manage their tradeoffs with other values pursued by the international legal system, and (2) that the actions of independent judges and tribunals, informed by non-state actors, will influence state behavior. Doubts about the abilities of judges and …

Changing The International Law Of Sovereign Immunity Through National Decisions, Lori F. Damrosch

Vanderbilt Journal of Transnational Law

The international law of sovereign immunity derives from state practice embodied in national judicial decisions and legislation. Although some U.S. Supreme Court decisions refer to this body of law using terms like "grace and comity," the customary international law of sovereign immunity is law, which national courts should consider when arriving at immunity decisions. While it would be possible for a widely followed international treaty to work changes in customary international law, the UN Convention on Jurisdictional Immunities of States and Their Property has not done so yet. National legislation such as the U.S. Foreign Sovereign Immunities Act can precipitate …

Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth

Vanderbilt Journal of Transnational Law

Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article …

The Scattered Remains Of Sovereign Immunity For Foreign States After Republic Of Argentina V. Weltover,Inc., Sarah K. Schano

Vanderbilt Journal of Transnational Law

The globalization of the United States economy in the latter half of the twentieth century has fostered greater interaction between the United States and foreign states and their instrumentalities. As a result, the likelihood of legal disputes arising between United States entities and foreign states has increased. Traditionally, foreign states have been immune from suit in United States courts. However, the Foreign Sovereign Immunities Act (FSIA), enacted in 1976, specifies instances in which United States courts may deny immunity to foreign states and exercise jurisdiction over them. Under one provision of the FSIA, a foreign state may forfeit its immunity …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

No abstract provided.

Reconceptualizing Sovereign Immunity, Harold J. Krent

Vanderbilt Law Review

The United States generally is immune from suit without its con- sent. Accordingly, neither Congress nor the executive branch need pay damages' for any contract breached, any tort committed, or any constitutional right violated by the federal government. Although the doctrine of sovereign immunity persists, it persists subject to near unanimous condemnation from commentators. Many have rejected the underlying theory that the "King can do no wrong" as oddly out of place in our republican governments and many have noted as well that sovereign immunity was never applied as comprehensively in the past as it is today. Presently, there seems …

Closing The Book On The School Trust Lands, C. Maison Heidelberg

Vanderbilt Law Review

Public education in the United States faces a crisis. Financially strapped state and local governments find funding more and more difficult to supply; as a result, the quality of public education suffers. Predictably citizens are concerned, yet they resist paying increased taxes to meet the rising costs.

School trust lands provide one potential source of extra revenue. Though their existence is not well known, these lands are tremendous assets held by most states other than the original thirteen. In general, they have produced significant amounts of revenue for public education, yet historically state management of the lands has been marred …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

This CASE DIGEST provides brief analyses of cases that represent current aspects of transnational law. The Digest includes cases that establish legal principles and cases that apply established legal principles to new factual situations. These cases are grouped in topical categories and references are given for further research.

Sovereign Immunity: The Exception For Intellectual Or Industrial Property, Virginia Morris

Vanderbilt Journal of Transnational Law

The doctrine of sovereign or state immunity exempts a state and its property from the judicial jurisdiction of any other state. The domestic courts of various nations have developed this doctrine over the years through cases in which private citizens have attempted to sue foreign states. Courts' enunciations of the principle of state immunity and their reasons for granting or denying the immunity are almost as numerous as the countries whose courts have faced this issue. The current work of the International Law Commission (the Commission) on the codification and the progressive development of the jurisdictional immunities of states and …

Foreign Sovereign Immunity In The United States Courts 1976-1986, Mark B. Feldman

Vanderbilt Journal of Transnational Law

In principle, the Reagan Administration should support measures that strengthen the international trading system and that help secure United States investment abroad, as such measures encourage the flows of capital, technology and know-how from the private sector, which the Administration recognizes to be essential to successful economic development in the Third World. However, the responsible attorneys in the State Department and the Justice Department are particularly sensitive to the reactions of foreign governments and to the interests of United States agencies as potential defendants in foreign courts.

The Executive finally defined its position in hearings in the House of Representatives …

Recent Development: Procedure--Right To A Jury Trial In Actions Against Corporations Owned By Foreign Governments, William A. Zan Blue

Vanderbilt Journal of Transnational Law

Three federal circuit courts of appeals recently have held that United States citizens are not entitled to a jury trial in an action against a commercial corporation owned by a foreign government. The Second, Third, and Fourth Circuit Courts of Appeals agree that the Foreign Sovereign Immunities Act (FSIA), the sole basis for federal subject matter jurisdiction, provides only for nonjury trials in legal actions against commercial corporations owned by a foreign government. These courts also agree that this statutory denial of a jury trial does not abridge a citizen's seventh amendment right. These decisions are important because of the …

Recent Decisions, David R. Simon, David D. Dowd

Vanderbilt Journal of Transnational Law

Antitrust--Act of State Doctrine Precludes Judicial Review of Cases in which Private Defendant Induces Foreign Sovereign to Boycott Plaintiff's Services and Products

David R. Simon

Plaintiff, a designer and manufacturer of short takeoff and landing (STOL) aircraft, sought damages from defendants for violation of sections 1 and 2 of the Sherman Act. Specifically, plaintiff alleged that defendant's employees falsely disparaged General Aircraft Corporation's (GAC) STOL aircraft products and services by circulating false and misleading performance reports and engaged in a "vendetta" designed to drive GAC out of business because of GAC's refusal to conduct Southeast Asian Helio sales under the …

Recent Decisions, Kevin P. Hishta, J. Clifton Cox, Shari D. Olenick, Stephen B. Hatcher, Ann M. Bell

Vanderbilt Journal of Transnational Law

ALIENS--Executive Suspension of Alien's Deportable Status Final as Congressional Veto Mechanism violates Constitutional Doctrine of Separation of Powers

Kevin P. Hishta

--------------------------- Sovereign Immunity--Iranian Immunity from Pre-Judgment Attachments Terminated under International Emergency Economic Powers Act

J. Clifton Cox

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Sovereign Immunity--Government Shipping Company of the People's Republic of China is an "Agency or Instrumentality" for the Purposes of the Foreign Sovereign Immunities Act of 1976

Shari D. Olenick

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State Corporate Income Tax--Foreign Source Dividends Included in State Taxation Base Under Unitary Business Enterprise Test

Stephen B. Hatcher

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Trade Regulation--Use of Registered Mail by Federal Trade Commission to Subpoena …

Defining The Government's Duty Under The Federal Tort Claims Act, Thomas A. Varlan

Vanderbilt Law Review

This Recent Development traces the Supreme Court's development of the analogous private liability test and examines the recent cases applying this test. The Recent Development then analyzes the divergent approaches taken in these cases and attempts to determine when an actionable duty arises under the Act.

Recent Decisions, James M. Redwine

Vanderbilt Journal of Transnational Law

The instant decision should serve to stimulate discussion on both the theoretical justifications for and the practical implications of jury trials in actions against governmental defendants, and therefore, may lead to revision of the FSIA. From a theoretical perspective, although the instant court correctly noted the changes effected by the Act, it failed to perceive the full extent of Congress' power in the domestic context. Congress, by its ability to classify entities as "agencies" or "instrumentalities" of the United States, thereby exempting specific entities from the non-jury trial provisions of FTCA, has the power, in effect, to restrict the scope …

Foreign Sovereign Immunity--The Status Of Legal Entities In Socialist Countries As Defendants Under The Foreign Sovereign Immunities Act Of 1976, Jere G. Thompson

Vanderbilt Journal of Transnational Law

The Foreign Sovereign Immunities Act of 1976 (FSIA) grants an "agency or instrumentality" of a foreign state substantially the same immunities that are provided to the state itself under the Act. An agency or instrumentality of a foreign state is defined in section 1603(b) of the FSIA. Section 1603(b) lists the following three criteria that must be met by an entity in order to qualify as an agency or instrumentality for sovereign immunity purposes: (1) the entity must be a legally independent person under the laws of the foreign state in which it was created; (2) the entity must be …

Recent Decisions, Gayle B. Carlson, Michael P. Coury, Celia J. Collins, Spencer M. Sax

Vanderbilt Journal of Transnational Law

ACT OF STATE DOCTRINE-ACT OF STATE DOCTRINE DOES NOT PRECLUDE ADJUDICATION OF ANTITRUST CLAIM INVOLVING ALLEGED FRAUDULENT PROCUREMENT OF FOREIGN PATENTS

Gayle B. Carlson

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ADMIRALTY-DAMAGES FOR WRONGFUL DEATH ON THE HIGH SEAS ARE LIMITED TO PECUNIARY LOSS

Michael P. Coury

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ANTITRUST-E.E.C. TREATY-JOINT VENTURE AGREEMENT THAT OPERATES TO PRECLUDE ENTRY INTO A GEOGRAPHIC MARKET IS PROHIBITED UNDER ARTICLE 85 OF THE E.E.C. TREATY

Celia J. Collins

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CONSTITUTIONAL LAW-TEAS STATUTE'S DENIAL OF FREE EDUCATION TO ILLEGAL ALIENS VIOLATES EQUAL PROTECTION CLAUSE AND IS PREEMPTED BY THE IMMIGRATION AND NATIONALITY ACT

Spencer M. Sax

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SOVEREIGN IMMUNITY-FOREIGN SOVEREIGN IMMUNITIES ACT …

Recent Decisions, Aubrey W. Bogle, Iii, Edward H. Lueckenhoff, Clark C. Siewert, Joe B. Foltz, Michael P. Peck

Vanderbilt Journal of Transnational Law

Admiralty--Requirement of Minimum Contacts for Jurisdiction to Attach Property of Nonresident Defendant is not Applicable to Maritime Attachment

Aubrey W. Bogle, III

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Buy American Statutes--New Jersey--Constitutionality of Buy American Statute Upheld by State Supreme Court

Edward H. Lueckenhoff

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Citizenship--The Fourteenth Amendment requires Proof by Clear, Convincing, and Unequivocal Evidence that Relinquishment of United States Citizenship is Voluntary

Clark C. Siewert

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Extradition--Double Jeopardy Provision of Extradition Treaty Applies even Where Crime Committed before Ratification

Michael P. Peck

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Sovereign Immunity--Service of Process in the United States on a Permanent Mission to the United Nations must Conform to the …

Recent Developments, Law Review Staff

Vanderbilt Law Review

The doctrine of sovereign immunity' prohibits the courts from assuming jurisdiction of a foreign sovereign without that sovereign's voluntary acquiescence, and the act of state doctrine prohibits the courts from assuming jurisdiction to judge the acts of a foreign sovereign performed within the geographical borders of its own country. In the United States, a judicial determination of self-restraint under either of these two doctrines effectively operates to bar further litigation on complaints brought against foreign governments or their instrumentalities and on complaints brought against private individuals, but based on the acts of their sovereigns. Despite the common policy foundations of …

Doctrines Of Sovereign Immunity And Act Of State--Conflicting Consequences Of State Department Intervention, Law Review Staff

Vanderbilt Law Review

The doctrine of sovereign immunity' prohibits the courts from assuming jurisdiction of a foreign sovereign without that sovereign's voluntary acquiescence, and the act of state doctrine prohibits the courts from assuming jurisdiction to judge the acts of a foreign sovereign performed within the geographical borders of its own country. In the United States, a judicial determination of self-restraint under either of these two doctrines effectively operates to bar further litigation on complaints brought against foreign governments or their instrumentalities and on complaints brought against private individuals, but based on the acts of their sovereigns. Despite the common policy foundations of …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

The purpose of the Case Digest is to identify and summarize for the reader those cases that have less significance than those which merit an in-depth analysis. Included in the digest are cases that apply established legal principles without necessarily introducing new ones. This initial digest includes cases reported from January through September,1971. Henceforth, the Winter issue will include cases reported from April through September, and the Spring issue will contain cases reported from October through March. The cases are grouped into topical categories, and references are given for further research. It is hoped that attorneys, judges, teachers and students …

Case Comments, Journal Staff

Vanderbilt Journal of Transnational Law

Sovereign Immunity and Act of State -- A Foreign Sovereign instituting Suit in a United States Court waives Immunity to a Set-off arising from an Act of that Sovereign

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International Law--Nuremburg Doctrine invoked in Domestic Court-Martial

A Symposium On State Trading, William W. Bishop, Jr., Edwin D. Dickinson

Vanderbilt Law Review

It is a privilege and an honor to be invited to introduce the following collection of articles on State Trading. In planning and organizing this symposium, the Vanderbilt Law Review has chosen to deal with an important factor in contemporary economic life--a factor which has widespread ramifications in both domestic and international law. The included articles cover a wide variety of subjects, and represent view-points which differ considerably. They have the common quality of clear and full presentation of information about current problems, while at the same time suggesting further lines for investigation. Each article offers much of interest and …

Cooperative Action For Improved Statutory Interpretation, Frank E. Horack Jr.

Vanderbilt Law Review

During the past quarter century there has been a constant acceleration in legal periodical comment concerning statutory construction. Judges, practicing attorneys and law professors all have echoed basic dissatisfaction with the operation and application of the rules of statutory interpretation. Some would return to the "safe old ground" of literal interpretation; others would find relief in an expanded use of extrinsic aids; all find the process in a state of confusion and disintegration.