Law Commons^™

Peak Coordinating Bodies And Invasive Alien Species: Is The Whole Worth More Than The Sum Of Its Parts?, Sophie Riley

Sophie Riley

The development of regimes to regulate invasive alien species (IAS) has historically progressed in a fragmented and ad hoc manner. To remedy this situation the United States of America and Great Britain have introduced peak coordination bodies to draw their regimes together. However, in Australia, the Senate has expressed concern at the consequences of establishing such bodies, concluding that they merely duplicate regulation at the various levels of government; and, additionally, have the potential to destabilize Australia’s constitutional balance of powers. Using a comparative methodology based on the ‘functionalist’ approach, this paper undertakes a comparative study of IAS regulation in …

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

Law Of Trade In Human Rights: A Legal Analysis Of The Intersection Of The General Trade Agreement Of Tariff’S Article Xx(B) And Labor Rights Of Children., Paul Cook

Paul Cook

China's child labor is on the rise with its 8% annual economic growth. Children are valued for their labor for several reasons: their cheaper price, their ignorance of their legal rights, their dexterous hands, and good eye sight. The use of juvenile labor is most prevalent in the following industries: toy production, textiles, construction, food production, and light mechanical work. Underage laborers are particularly vulnerable to job related hazards resulting in injury and death, and this is because they tend to be less aware of workplace hazards than do adult workers. Children begin work as early as twelve years old …

The Taking Of Diplomatic Hostages, Tehran 1979: An Islamic And International Legal Perspective., Michael P. Hatchell

Michael P Hatchell

This paper will examine the hostage crisis at the American embassy in light of Islamic Sharia, the 1979 International Court of Justice case concerning United States Diplomatic and Consular Staff in Tehran, the Iranian constitution and international law—both treaty law and principles of customary international law. Each one will shed a different light on the hostage crisis in 1979 and through their individual lenses a collective picture will emerge that will sharpen the condemnation of hostage taking regardless of the situation, rationale or ideology.

International Arbitration Scholarship And The Concept Of Arbitration Law, Stavros Brekoulakis

Stavros Brekoulakis

This article is about the concept of arbitration law and its relationship with international arbitration scholarship. It argues that the field of international arbitration scholarship has developed in isolation and never fully engaged with the crucial movements of international legal scholarship that advanced a more progressive and humanitarian concept of international law. The dearth of interdisciplinary scholarship in arbitration has had two undesirable implications. First, it has had a negative impact on how non-arbitration scholars and the public perceive arbitration. Secondly, and more importantly for the purposes of this article, it has crucially impaired the concept and autonomy of arbitration …

Toward A Mature Doctrine Of Informed Consent: Lessons From A Comparative Law Analysis, John G. Culhane, King-Jean Wu, Oluyomi Faparusi, Eric J. Juray

John G. Culhane

This article undertakes a comparative, critical evaluation of the law of informed consent as it has developed in several nations (the U.S., Taiwan, Britain, and Canada) over the past several decades. It argues for extending the doctrine to cover all cases in which physicians and their patients discuss appropriate care (including prescription drugs), and presents a modified subjective approach to causation, based on the Canadian approach, as the model most consistent with the fundamental tenets of the doctrine.

Vietnam And The United States: Mining Pollution And The Tragedy Of The Commons, Heather Whitney

Heather Whitney

This paper will discuss Vietnam’s mining pollution problem, and its efforts to foster clean water create and an environmental protection framework within its Constitution, environmental laws and regulations. This paper will also juxtapose these issues with the United States’ regulatory mechanisms for mining and water quality protection, which in comparison are complex and well-rounded, but nonetheless still have regulatory and enforcement loopholes that prevent proper water quality protection. In Vietnam, like most developing countries, regulations and policy statements place socioeconomic growth above water quality protection that frustrates these efforts. Environmental and water quality laws and regulations in Vietnam have not …

No Remedy For This Wrong? Analyzing The Appropriate Remedy For Violations Of California Penal Code § 834c, Jared W. Olen

Jared W. Olen

Article 36(1)(b) of the Vienna Convention on Consular Relations provides that a foreign national of a state-party has the right to have her consulate notified of her arrest upon detention. Many United Supreme Court and other federal courts have grappled with issues stemming from that right, including whether the treaty creates privately-enforceable rights. However, California was unique in that it enacted California Penal Code § 834c, which codifies as state law the right to consular notification.

While this codification precludes much discussion about privately-enforceable rights, the statute is, however, silent on what remedy should be applied if law enforcement violate …

Class Arbitration: The Necessary Counterpart To The Arbitrability Of Statutory Rights, Laura Yvonne Zielinski

Laura Yvonne Zielinski

Why is it so problematic to restrict the availability of class arbitration in the United States? I will argue in my paper that class arbitration is a compromise between the pro-arbitration policy and the protection of weaker parties and thus necessary to sustain the liberal American model of arbitration. It is indeed the necessary counterpart to the arbitrability of statutory rights.

During the last thirty years, the policy of the United States towards arbitration has become increasingly favourable and the introduction of arbitration clauses into all sorts of contracts, including adhesion contracts between parties of highly unequal bargaining power, has …

Problems Of Perception In The European Court Of Human Rights: A Matter Of Evidence?, Anne Richardson Oakes

Anne Richardson Oakes

The “doctrine of appearances” is now an important element of the jurisprudence of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The court derives support for its interpretations from the traditional precept of the common law that “justice must be seen to be done.” However, the formulations of the European Court are idiosyncratic and apparently driven by an asserted perception of an increased public sensitivity in this area. This paper examines these formulations and considers the extent to which judicial principles of procedural fairness require an empirical connection.

Of Particles And Proportionality: Negotiating A Truce Between Humanitarian And Human Rights Principles In The Law Of Armed Conflict, Matt Meltzer

Matt Meltzer

The conflict between international humanitarian law (“IHL”) and human rights law (“HRL”) in the regulation of combat is one of the most hotly debated issues in the law of armed conflict. As human rights law has come into greater prominence over the past twenty years, international tribunals and non-government organizations have struggled with how to effectively integrate its principles with the longer-established strictures of international humanitarian law. Because human rights law would prohibit a large swathe of hostile conduct that international humanitarian law has long permitted, a conflict between these two fields is inevitable. At stake in this legal debate …

Parliamentary Oversight Of The Executive In India, Anirudh Burman

Anirudh Burman

The need for a strong monitoring mechanism of the executive in India has been made clearer by recent allegations of corruption against high-ranking officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the executive. It would also increase the general level of expertise within Parliament …

Opting Out Of The Procedural Morass: A Solution To The Class Arbitration Problem, Emanwel J. Turnbull

Emanwel J Turnbull

American class actions are internationally regarded as a procedural form to avoid and widely criticized in the United States. They have been narrowed and restricted by U.S. statutes and case law. Plaintiffs' lawyers in consumer class actions are portrayed as greedy and fraudulent, while businesses are increasingly acting to avoid class actions through mandatory pre-dispute arbitration clauses. Even class arbitration is criticized as leading to a “procedural morass.” This Article proposes that parties and arbitral fora opt out of the American procedural morass (and the attendant long-running disputes about American class actions) by adopting an English procedural rule for aggregation. …

Efficiency Themes In Tort Law From Antiquity, M Stuart Madden

M Stuart Madden

Hellenic philosophers assessed the goals of society as: (1) the protection of persons and property from wrongful harm; (2) protection of the individual’s means of survival and prosperity; (3) discouragement of self-aggrandizement to the detriment of others; and (4) elevation of individual knowledge that would carry forward and perfect such principles. Roman law was replete with proscriptions against forced taking and unjust enrichment, and included rules for ex ante contract-based resolution of potential disagreement. Customary law perpetuated these efficient economic tenets within the Western World and beyond. The common law, in turn, has nurtured many of the same ends. From …

Providing A Foundation For Wealth For Wealth Creation And Development In Africa: The Role Of The Rule Of Law, John Mukum Mbaku

JOHN MUKUM MBAKU

PROVIDING A FOUNDATION FOR WEALTH CREATION AND DEVELOPMENT IN AFRICA: THE ROLE OF THE RULE OF LAW JOHN MUKUM MBAKU ABSTRACT This paper examines the struggle in Africa to alleviate and eventually eradicate poverty. It is argued that the most effective way for African countries to deal with poverty is to create wealth. Unfortunately, these countries have not been able to create the wealth that they need to confront poverty. This is due primarily to the fact that since independence, these countries have not been able to undertake democratic institutional reforms to create and adopt institutional arrangements that guarantee and …

Pirate Accessory Liability – Developing A Modern Legal Regime Governing Incitement And Intentional Facilitation Of Maritime Piracy, Roger L. Phillips

Roger L Phillips

Despite the exponential growth of piracy off the coast of Somalia since 2008, there have been no prosecutions of those who have profited most from ransom proceeds; that is crime bosses and pirate financiers. As U.S. courts begin to charge higher-level pirates, they must ascertain the status of customary international law as reflected in the UN Convention on the Law of the Sea. UNCLOS includes two forms of accessory liability suited to such prosecutions, but a number of ambiguities remain in the interpretation of these forms of liability. These lacunae cannot be explained by reference to the plain terms of …

Defying Gravity: The Development Of Standards By States In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Matthew H Charity

The number of nations that have signed and ratified the Rome Treaty of the International Criminal Court continues to expand, but the number of cases prosecuted remains fairly small. One issue that defies resolution is the place of complementarity in the post-conflict jurisdictional decisions of the I.C.C. and national tribunals. Although the Rome Statute crystallizes definitions of core international crimes, the interpretation of processes leaving jurisdiction with the nation or allowing jurisdiction to the I.C.C. continues to lack structure.

One step that some states have taken in implementing legislation and processes in support of jurisdiction over I.C.C. core crimes is …

The Emergence Of Private Property Law In China And Its Impact On Human Rights, Mark D. Kielsgard, Lei Chen

Mark D. Kielsgard

ABSTRACT This article investigates the development of private property law in the PRC and its connection to the growth of human rights trends in China. It assesses the vitality of these trends, reviews the relevant historic legal and social background and demonstrates how the introduction of private property in China has fundamentally altered the fabric of its civil society. Drawing upon case studies and statutory analysis, and evaluating them from the perspective of both Chinese and Western scholarship, it analyzes trends driving greater democratic structures by reviewing the self-governance of condominium owners associations and the human rights practices they have …

Error In Persona Vel In Objecto And Aberratio Ictus Vel Impitus: A Transferred Malice?, Khalid Ghanayim

Khalid Ghanayim

No abstract provided.

Regulating Tactical Nuclear Weapons, Dakota S. Rudesill

Dakota S. Rudesill

In 2013, U.S. and Russian negotiators are expected to enter the next frontier in nuclear arms control: regulating small, “tactical” nuclear weapons. This framework article will be the first squarely on the subject in the legal literature. My core arguments are that (1) to date the bilateral Washington-Moscow arms control legal regime has primarily regulated strategic (i.e., long-range) nuclear delivery vehicles (bombers, missiles, and submarines) rather than warheads; (2) contrary to common assumption, the legal regime has regulated a small number of tactical delivery vehicles (jet fighters and other short-range systems) with arguable strategic relevance, providing a regulatory precedent; (3) …

Judicial Oversight In The Comparative Context: Biodiversity Protection In The Us, Australia, And Canada, Robert B. Shaffer

Robert B Shaffer

How effective are the courts as policymaking institutions? To investigate this issue, I examine two species – polar bears, and loggerhead sea turtles – as they navigate the conservation regimes in the US and Canada and the US and Australia, respectively. Generally speaking, courts play a far larger role in American biodiversity law than they do in comparable Australian and Canadian statutory programs. As a result, studying endangered species protection offers a useful way to identify and isolate the policy impacts of judicial intervention.

Based on this analysis, I argue that courts can be effective contributors to the policymaking process. …

Museum Strategies: Leasing Antiquities, Silvia Beltrametti

Silvia Beltrametti

This is the first attempt to study leasing in the context of the international trade in cultural artifacts. This article advances a heated debate in the field of cultural heritage law, which centers on whether cultural artifacts of ancient civilizations should belong to the modern nation states from which they are excavated or to humankind in general, by proposing an alternative analytic framework based on leasing, which would make it possible for objects to circulate but at the same time stay under the ownership and jurisdiction of their respective source countries.

A Legal Standard For Post-Colonial Land Reform, Amelia Peterson

Amelia Peterson

This article proposes a legal standard for the design of post-colonial land redistribution policies. It confronts the complex interface between the need for land reform to alleviate land pressure in many developing countries, and the importance of upholding the idea of property. Regardless of which side of the post-colonial milieu we most quickly sympathize with, human rights law removes the tendency to seek out the victim by framing its language in terms of the homo sapien, not one particular race, gender, or economic status. It is in the interest of the various stakeholders enmeshed in post-colonial land imbalance debates and …

Blatant Bribery Or Locally Lawful?: Is The Foreign Corrupt Practices Act’S “Local Laws” Defense Extinct?, Erik J. King

Erik J King

Under the Foreign Corrupt Practices Act (FCPA), it is an affirmative defense if the payments in question were lawful under the written laws of a foreign country. This defense has been largely overlooked by commentators and used sparingly in the court system. This Note examines the utility of this defense, and finds that although the concept underlying the defense remains somewhat alive in certain types of foreign laws that could conceivably excuse a foreign investor, the defense has lost all practical value. U.S. judicial interpretations, multilateral efforts against similar exceptions in other anti-bribery laws, and the subsuming effect of other …

A Decade Of Progress: Promising Models For Children In The Turkish Juvenile Justice System, Brenda Mckinney, Lauren Salins

Brenda A McKinney

In the past decade, Turkey has improved its approach to dealing with children in conflict with the law and moved the country closer to a system that ensures all children have the chance they deserve to strive for a better future. This paper focuses on two promising reforms that have been instituted in Turkey and that have the potential for improving juvenile justice systems in the rest of the world. They are: 1) open model incarceration and 2) diversion. While this paper also addresses challenges inherent in these models and discusses broader issues in the Turkish juvenile justice system that …

Politics And Legal Regulation In The International Business Environment: An Fdi Case Study Of Alstom, S.A., In Israel, Jeffrey A. Van Detta

Jeffrey A. Van Detta

This article identifies and carefully considers the panoply of municipal and international legal issues that arise from a hypothetical Foreign Direct Investment (FDI) by one of the world’s largest Multi-National Enterprises (MNEs). Specifically, the article fleshes out a detailed FDI analytic framework as we considered the hypothesized—yet, entirely plausible—investment by Alstom, S.A., in Israel’s energy sector: joint-venturing with Israel’s Multimatrix, Ltd., to employ Alstom’s world-class wind-power expertise in developing a 75-turbine wind farm on the wind-swept Golan Heights, one of the Occupied Territories.

Among the specific issues addressed are:

1. The political situation in Israel, Syria, and Iran;

2. The …

The Creation And Dissolution Of Gran Colombia, F.E. Guerra-Pujol

F.E. Guerra-Pujol

George Washington and Simón Bolívar not only led successful revolutions against their colonial rulers, these great leaders also oversaw the drafting of concise federal constitutions and were able to establish promising constitutional unions: (i) the creation and ratification of the US Constitution and the integration of 13 separate states into a single nation, and (ii) the creation of a promising South American federal republic, the Republic of Colombia or “Gran Colombia” (1819-1830), consisting of modern-day Colombia, Ecuador, and Venezuela. Despite these similar origins, the subsequent constitutional histories of both regions could not have been more different: one constitution proved to …

Changing The Paradigm Of International Criminal Law: Considering The Work Of The United Nations War Crimes Commission Of 1943-1948, Daniel T. Plesch, Shanti Sattler

Daniel T Plesch

Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943-1948 by Dr Dan Plesch and Shanti Sattler This article discusses the precedents of the largely forgotten United Nations War Crimes Commission (U.N.W.C.C.) of 1943-1948. The work of this multinational body should be regarded as a source of customary international law. We seek to introduce the U.N.W.C.C. and the thousands of national trials it supported into modern discourse about the development of international criminal justice and argue why they are relevant to current deliberations. The article concludes that the U.N.W.C.C. has been …

The Importation Of The Rule Of Reason In European Competition Law: The Implications Of Economic And Behavioral Theories And The Case Of Port Services, Davide Maresca

Davide Maresca

The regulation of international markets is nowadays faced with an important debate emerging from the study that started long ago at the Chicago School, passed through behavioral theories, and arrived in the European Union model. Two main theories set against each other concerning the market and antitrust regulation. The first one, law and economics theory, is based on the economic analysis of the costs and benefits of restraint of trade, and justifies a restraint only for economic reasons. The second, behavioral law and economics theory, is based on the empirical analysis of the regulation through instruments taken from social sciences. …

Toward Cyber Peace: Managing Cyber Attacks Through Polycentric Governance, Scott Shackelford

Scott Shackelford

Views range widely about the seriousness of cyber attacks and the likelihood of cyber war. But even framing cyber attacks within the context of a loaded category like war can be an oversimplification that shifts focus away from enhancing cybersecurity against the full range of threats now facing companies, countries, and the international community. Current methods are proving ineffective at managing cyber attacks, and as cybersecurity legislation is being debated in the U.S. Congress and around the world the time is ripe for a fresh look at this critical topic. This Article searches for alternative avenues to foster cyber peace …