Law Commons^™

Economic Approaches To Global Regulation: Expanding The International Law And Economics Paradigm, Dan Danielsen

Dan Danielsen

The recent economic crisis has demonstrated with startling clarity the importance of developing a more robust framework for assessing the effects of national rules on global welfare. For more than fifty years, law and economics scholars have examined the effects of domestic legal rules on economic activity and general welfare in the United States. More recently, international law scholars have begun to use economic methods to analyze the international legal order. In this article I survey this evolving body of “international law and economics scholarship” with a view to articulating its principle methodological innovations as well as assessing its contributions …

Why Comply? An Analysis Of Trends In Compliance With Judgments Of The International Court Of Justice Since Nicaragua., Heather L. Jones

Heather L Jones

Decisions of the International Court of Justice have been met with substantial compliance in the modern era. Direct, defiant noncompliance -- where a state deliberately and ceaselessly rejects a decision of the Court and refuses to implement its judgment -- has not occurred in any case. In cases where noncompliancy has been present, the noncompliant behavior has been only initial or slight.

Pressure from the international community and the presence of international organizations raise the reputation costs associated with noncompliance thereby minimizing the risk of disobedience with judgments. Defiant noncompliance occurs where a judgment is in discord with a state’s …

Liability For Damage Caused By Space Objects Under International And National Law, Paul S. Dempsey

Paul S Dempsey

ABSTRACT Because of the imposition of State liability for damage inflicted by space objects under the multilateral Space Law Conventions, many States have promulgated national legislation providing licensing, insurance and indemnification by commercial providers. In order to promote commercial operations in space, some States also have capped liability. This article addresses two principal issues: (1) the liability exposure of States for death, injury, or property damage by providers of commercial spaceflight; and (2) how States protect themselves in their domestic legislation through indemnification and insurance requirements in the licensing and regulation of launches, launch sites, launch vehicles, space vehicles and …

The Puzzling Parameters Of The Foreign Law Debate, Vlad F. Perju

Vlad Perju

No abstract provided.

Globalization And The Theory Of International Law, Frank J. Garcia

Frank J. Garcia

The dominant modern account of the social basis of international law has been the "society of states" model. In this view, to the extent that international law constructs an ordered social space (a claim which has been contested since Hobbes if not before), it is a social space in which states are the actors. This view has had a profound effect on international law. For example, the doctrine of state responsibility classically understands international harms to individuals within a framework of harm to a state's rights. Normatively, to the extent justice is considered an operational concept in international law, it …

Review Of Legal Polycentricity And International Law, Frank J. Garcia

Frank J. Garcia

No abstract provided.

Human Rights Treaty Body Reform: New Proposals, Andrew Kloster

Andrew Kloster

“Reform” in international human rights law has become a narrow concept. A survey of the literature reveals that nearly any suggestion for reform concerns greater enforcement of international human rights substantive norms.

It is the purpose of this article to address the neglected question of treaty body role. Section II provides a nuts-and-bolts guide to the treaty body mandates for United Nations delegates, States Parties, and international lawyers. This section sketches the proper and improper actions for treaty bodies to take. It is our contention that if treaty bodies were limited to their proper role, they could more effectively use …

Parents Behaving Badly: Whether, In The Wake Of Miller-Jenkins, Public Policy Considerations Should Play A Role In Custody Decisions, Ethan G. Kate

Ethan G. Kate

Miller-Jenkins v. Miller-Jenkins illustrates the dilemma facing courts in contentious custody disputes: At what point, if ever, should the best interests of one child cede to the interests of society at large? The best interests standard has become the predominant norm for settling custody disputes under both domestic and international law, yet satisfying the needs of one child can potentially establish precedent that runs counter to public policy, often forcing courts to ignore – or at least claim to ignore – these public policy considerations in order to reach a decision based on the individual child’s best interests. Undoubtedly aware …

Vietnam, China, And The United States: The Regulatory Framework Of Mining Pollution And Water Quality, Heather Whitney

Heather Whitney

This paper compares the environmental, mining, and water quality policy and regulatory framework of three countries: Vietnam, China, and the United States. There are many similarities between China and Vietnam’s legal framework and environmental protection mechanisms, by virtue of the fact that they are both socialist countries, both authoritarian governments, and both in the midst of an industrial revolution. The United States intersects in some areas of water quality standards and technological controls of effluents with both countries, as well as certain enforcement measures. This is true especially in China, where the EPA has actively consulted the Chinese government in …

Fragmentation And Coherence In International Law, Joel P. Trachtman

Joel P Trachtman

With the increasing scope and density of international law, we will observe increasing instances of fragmentation. Fragmentation is not necessarily a problem, insofar as there may be no need for coordination among different legal regimes. But where it does raise issues of conflict, or presents opportunities for synergy, it is useful to inquire whether fragmentation might be managed in a way that would reduce inefficient conflict, or harvest synergies. The existing formal system for management, provided in the VCLT, is quite limited in its response, and the outcomes that it produces would not necessarily be substantively satisfactory. This article reviews …

Rethinking The Anti-Counterfeiting Trade Agreement Copyright Criminal Enforcement Measures, Miriam Bitton

Miriam Bitton

A few developed countries have secretly initiated and negotiated the Anti-Counterfeiting Trade Agreement (ACTA). The ACTA is aimed at enhancing international copyright and trademark enforcement measures. The Article analyses the copyright dimension of ACTA, considering its various provisions and the rationale behind them. The article does so by thoroughly examining the complex intersection of intellectual property law and criminal law. The Article then draws a few major conclusions and makes contributions to the area of copyright law: it shows how the ACTA in fact merely mimics the U.S. approach towards criminal enforcement of copyright law. Second, and more importantly, it …

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

The Holocaust Insurance Accountability Act Of 2010: Hearing Before The United States House Of Representatives, Committee On The Judiciary, Subcommittee On Commercial And Administrative Law. 111th Congress, 2nd Session, Michael P. Van Alstine

Michael P. Van Alstine

The testimony explores the essential legal issue of the extent to which executive agreements related to H.R. 4596 have any force as law in the United States. The agreements made it clear that they did not, by themselves, “provide an independent legal basis for dismissal” of claims of Holocaust victims filed in any courts of the United States. Instead, the executive branch simply agreed to file a “statement of interest” in such lawsuits to the effect “that U.S. policy interests favor dismissal on any valid legal ground.” Some lower courts have nonetheless given the statements of interest preemptive effect as …

The Other In International Law: 'Community' And International Legal Order, Maxwell O. Chibundu

Maxwell O. Chibundu

There is a built-in paradox in the emergence of international law over the last decade as a core concern of academics and policy-makers. On the one hand, it is difficult to imagine any other period in history that has witnessed such a profusion of attempts to tame the anarchical society by hedging it in a straight-jacket of legalities. Throughout the 1990s, international conferences generated reams of treaties, codes, and agendas for action. International adjudicatory tribunals proliferated, and endeavored to give teeth to ideas and obligations hitherto thought to be essentially aspirational. And yet, the ability of international law to regulate …

The Imposition Of The Death Penalty In The United States Of America: Does It Comply With International Norms?, Beverly Mcqueary Smith

Beverly McQueary Smith

No abstract provided.

Developing A World Vision: An Introduction To International Environmental Policy, Beverly Mcqueary Smith

Beverly McQueary Smith

No abstract provided.

Exploring The Role Of Legitimacy And Identity In Framing Responses To Global Reforms In Socialist Transforming Asia, John S. Gillespie

John S Gillespie

Exploring the Role of Legitimacy and Identity in Framing Responses to Global Legal Reforms in Socialist Transforming Asia John Gillespie Abstract A bourgeoning literature about socialist transforming Asia (China and Vietnam) shows that economic development is possible without fully functioning legal systems based on laws and institutions derived from North America and Europe. What is less clear is whether over time the regulatory systems in these countries will evolve toward more economically efficient globalized forms of Western governance, as some commentators suggest, or follow a more complex pattern of convergence and divergence. This article advances the debate by investigating the …

Shoot First And Ask Legal Questions Later: Evaluating The Legality Of Us Policy Of The Targeted Killing Of Us Citizens Suspected Of Terrorism, Sarah M. Riley Esq.

Sarah M. Riley Esq.

In February, 2010, Director of National Intelligence Dennis Blair admitted that it is U.S. policy to deliberately target and kill U.S. citizens who are suspected of being involved in terrorism abroad. Such a policy raises serious legal questions at the international and domestic levels. This article exams the international legal issue of assassination and targeted killings, exploring when such killings are extra-legal. Determinations of the international legal categorization of the “war on terror” are made. While the conclusion that the United States is involved in non-international armed conflict with Al Qadea clarifies the international legal parameters of targeted killings, domestic …

Clarifying Genocidal Intent: A New Interpretive Doctrine, David Phillips

David Phillips

The ulterior intent provision of the international crime of genocide is the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. This special intent clause is the hallmark of genocide, yet it lacks uniform understanding and universality. Consequently, it has drawn interpretations across the mens rea spectrum, including dolus directus, dolus indirectus, and the broader notion of dolus eventualis. It shall be the aim of this essay to clarify genocidal intent and propound a clear and understandable interpretive doctrine, in the absence of which genocide will remain perennially susceptible to divergent interpretations. …

From Ideology To Pragmatism: China's Position On Humanitarian Intervention In The Post-Cold War Era, Jonathan E. Davis

Jonathan E Davis

This Article fills a gap in the literature by examining in depth China’s state practice and official pronouncements in respect of nine post-Cold War cases typically cited by academics when considering the international legal status of humanitarian intervention. The majority of today’s commentary and scholarship holds that the People’s Republic of China’s position on sovereignty and intervention remains inflexible and absolutist, much as it was for the PRC’s first four decades. This Article contends that this view is outdated and overly simplistic: while China continues to champion a strong conception of state sovereignty in interstate relations, it has signaled a …

The Expresive Necessity Of Gender-Based Violence Prosecutions, Allison Wells

Allison Wells

Despite the recent prominence of the Rome Statute’s stance against gender-based violence (“GBV”), many view international anti-GBV prosecutorial powers as ineffective and unenforceable. While acknowledging such pitfalls, this note opts to focus on the broad expressive value of landmark anti-GBV measures. Although their case-by-case tangible benefits may be unclear, anti-GBV prosecutions are an expressive necessity in that they: (1) support the further development of international criminal law; (2) represent and reiterate broad support for the international shift in views on sexual violence; and (3) help solidify new public norms regarding GBV as a reprehensible tool of war. In discussing the …

Foreign Law As Legislative Fact In Constitutional Cases, Aaron Christopher Bryant

Aaron Christopher Bryant

Do we really need another law review article about foreign law in constitutional interpretation? In fact we do. In the vast literature on the subject, a fundamental point has received scant attention. In the recent rulings that have stoked the present controversy, the Supreme Court has employed foreign law not as law, but rather merely as evidence of a legislative fact made relevant by domestic constitutional law. Commentators, however, have largely directed their attention to the merits of a genuine constitutional comparativism, in which foreign law serves as a model for the creation of domestic constitutional doctrine. Many commentators have …

Utopian Thought And The Law Of Nations, Stas Getmanenko

Stas Getmanenko

Thomas More in his conversation with Raphael Hythloday agreed with Plato that “nations will be happy, when either philosophers become kings, or kings become philosophers.” Some five hundred years following More’s sojourn to the New Isle of Utopia, the “philosophers” remain in search of a societal order that would appropriately reflect and encompass the humanity’s best social and political contrivances. Inasmuch as humanity remains governed by law, and “[a]ll laws are promulgated for this end, that every man may know his duty,” the quest for a modern Utopia is then appropriately placed in the purview of jurisprudence. This legal article …

Fragile Merchandise: A Comparative Analysis Of The Privacy Rights For Public Figures, Scott Shackelford

Scott Shackelford

Over a century after Warren and Brandeis first presented the right to U.S. jurists for their consideration, privacy has become a central player in U.S. law. But nations around the world, in particular the common and civil law nations of Europe that share similar legal cultures with the United States, are grappling with how best to strike a balance between the competing rights of privacy and freedom of expression—both of which are critical to the functioning of democratic society. Existing literature has not fully drawn from this reservoir of international experience to inform the debate about U.S. privacy rights. This …

Making A Case For Additional Fisheries Protections In, Mary -. George Dr

Mary - George Dr

No abstract provided.

Understanding Exploitation, Anne T. Gallagher

Anne T Gallagher

Anne Gallagher critiques Suddharth Kara's article "Supply and Demand: Human Trafficking in the Global Economy", published in Harvard International Review, June 2011.

The World Bank Group Sanctions Process And Its Recent Reforms, Frank Fariello, Anne-Marie Leroy

Frank A Fariello Jr

This article by the General Counsel and Lead Counsel/Operations Policy of the World Bank contributes to a growing literature on the role of international organizations as lawmakers. It presents a detailed account of the evolution of the World Bank Group’s sanctions process, with particular focus on the most recent round of reforms over the past five years. As part of those reforms, the Bank adopted broader definitions of fraudulent and corrupt practices (addressing ‘loopholes’ that had previously existed), strengthened its infrastructure for the investigation of such practices, and coordinated its efforts to a greater extent with other international institutions. The …

The Rule Of Law In Global Governance: Its Normative Construction, Function And Import, Gianluigi Palombella

Gianluigi Palombella

What does the Rule of law contribute in the frame of global governance? While addressing metamorphoses of law and the multiple legalities in the global context, this paper shows that the rule of law can consistently be extended externally being cherished internally. It takes seriously the concurrence of different legalities in their diverse ‘formats’, and the challenge of the “global administrative law” theoretical and empirical model. At the meta-level of the relations among legalities, the Rule of law has an essential role to play: it affects interactions and interdependence,and can cause content-dependent assessments to develop, without supporting self-closure or monistic …

Targeted Killing Court: Why The United States Needs To Adopt International Legal Standards For Targeted Killings And How To Do So In A Domestic Court, Michael Epstein

Michael Epstein

In light of the fact that the Obama Administration appears committed to continuing and expanding the use of drones and targeted killing as a primary counter-terrorism method, addressing both domestic and international concerns about the legality of our drone use is no simple task. Much has been written on the topic, and various definitions and interpretations of international law have been proposed; in order to address all of these concerns simultaneously while balancing the obvious reality that drone strikes will not stop anytime soon, I propose that a domestic judicial mechanism is required. Part I of this paper demonstrates the …

Disputes Related To Healthcare Across National Boundaries: The Potential For Arbitration, Deth Sao

Deth Sao

Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health …