Law Commons^™

Theorizing Transnational Law - Observations On A Birthday, Susanne Baer

Articles

There are many ways to theorize transnational law. As always, there is a mainstream, and there are “sidestreams.” However, it may be more interesting to consider from which direction such theories develop. Here, in appreciation of what the German Law Journal did to transnational legal conversations, I suggest to consider three directions in transnational legal studies: (1) theorizing from above; (2) theorizing from below; and (3) theorizing from inside. As you will see, much of the theories are in the German Law Journal (GLJ).

China-United States Trade Negotiations And Disputes: The Wto And Beyond, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

This article examines trade negotiations and disputes between China and the United States. It begins by ascertaining the unique political aspects of China-U.S. bilateral economic ties and explains the historical background underlying the relations. The article then argues that trade frictions between China and the United States are unlikely to repeat the Depression-era trade wars. The article observes that both the Chinese and U.S. governments are aware that the adoption of WTO-inconsistent measures may result in retaliatory actions from the other side. Hence, the two governments have attempted to resolve potential disputes through high-level official talks. Even when certain issues …

Trademarks And Human Rights: Oil And Water? Or Chocolate And Peanut Butter?, Megan M. Carpenter

Law Faculty Scholarship

In recent years, there has been a growing discourse at the intersection of intellectual property and human rights, including whether or not individual intellectual property rights are, or can be, human rights. In 2007, this debate began to focus on the area of trademarks. That year, the European Court of Human Rights determined that it had jurisdiction over a trademark dispute, by virtue of the property rights provision found in Article 1 of Protocol 1 to the European Convention on Human Rights. This paper seeks to explore the connection between trademarks and human rights. The first part of the article …

Transfer Pricing In Vat/Gst Vs. Direct Taxation: A Paper On The Topic Of Relations Between Associated Companies, Richard Thompson Ainsworth

Faculty Scholarship

This paper considers transfer pricing in VAT/GST and direct taxes, one of a range of tax relationships that flow between associated companies. The topic necessarily proposes an inquiry into vertical harmonization of transfer pricing norms alongside an assessment of present efforts to horizontally harmonize transaction values.

Stated differently, the vertical inquiry is: should the same transaction between the same associated enterprises be valued in the same manner by a single country in VAT/GST and direct taxes? The horizontal effort is: should two jurisdictions treat transactions between associated enterprises within their respective jurisdictions in the same manner in VAT/GST and direct …

Of Sweatshops And Human Subsistence: Habermas On Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

In this paper I argue that the discourse theoretic account of human rights defended by Jürgen Habermas contains a fruitful tension that is obscured by its dominant tendency to identify rights with legal claims. This weakness in Habermas’s account becomes manifest when we examine how sweatshops diminish the secure enjoyment of subsistence, which Habermas himself (in recognition of the UDHR) recognizes as a human right. Discourse theories of human rights are unique in tying the legitimacy of human rights to democratic deliberation and consensus. So construed, their specific meaning and force is the outcome of historical political struggle. However, unlike …

Conceptualizing Aggression, Noah Weisbord

Faculty Publications

The special working group tasked by the International Criminal Court’s Assembly of States Parties to define the supreme international crime, the crime of aggression, has produced a breakthrough draft definition.

This paper analyzes the key concepts that make up the emerging definition of the crime of aggression by developing and applying a future-oriented methodology that brings together scenario planning and grounded theory. It proposes modifications and interpretations of the constituent concepts of the crime of aggression intended to make the definition sociologically relevant today and in the foreseeable future.

Complexity And Aggregation In Choice Of Law: An Introduction To The Landscape, Louise Ellen Teitz

Law Faculty Scholarship

No abstract provided.

'De Facto Sovereignty': Boumediene And Beyond, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

In Boumediene v. Bush, which grants non-citizens detained at Guantanamo Bay, Cuba, constitutional habeas corpus privileges the Supreme Court took notice that the United States maintains "de facto sovereignty" over that territory. As its sole precedential support, the Court cited a case that never mentions the term de facto sovereignty. What is this concept? How important is it to the Court's holding? Did the Court get the concept right given its longstanding usage and meaning in Supreme Court precedent? And what can de facto sovereignty tell us about when the Court will find habeas to extend to other situations …

Toward Global Corporate Citizenship: Reframing Foreign Direct Investment Law, Rachel J. Anderson

Scholarly Works

This article argues that modern foreign direct investment law is a vestige of the colonial era during which early forms of transnational corporations emerged. Unlike international trade law and despite the dramatic developments of the twentieth century, foreign direct investment law remains largely unchanged. Due to a lack of political will, prior multilateral efforts to implement comprehensive foreign direct investment law reforms have been largely unsuccessful. However, in recent years, growing political will has emerged under the umbrella of Global Corporate Citizenship and related movements. This article posits that Global Corporate Citizenship is an opportunity to reframe and reform foreign …

Micro-Offsets And Macro-Transformation: An Inconvenient View Of Climate Change Justice, Michael P. Vandenbergh, Brooke A. Ackerly, Fred E. Forster

Vanderbilt Law School Faculty Publications

We have been asked to examine climate change justice by discussing the methods of allocating the costs of addressing climate change among nations. Our analysis suggests that climate and justice goals cannot be achieved by better allocating the emissions reduction burdens of current carbon mitigation proposals — there may be no allocation of burdens using current approaches that achieves both climate and justice goals. Instead, achieving just the climate goal without exacerbating justice concerns, much less improving global justice, will require focusing on increasing well-being and inducing fundamental changes in development patterns to generate greater levels of well-being with reduced …

The Taiwan Question And The One-China Policy: Legal Challenges With Renewed Momentum, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

The question of Taiwan’s status has faced legal challenges from the one- China policy under both domestic law and international law. The article argues that the state status of the Republic of China (ROC) on Taiwan has never ceased to exist as a result of either the loss of diplomatic recognition or the United Nations Resolution 2758, which transferred the UN seat from the ROC to the People’s Republic of China (PRC). In the past decades, the ROC and the PRC possess separate statehoods and have co-existed under the “de jure roof of China.” The evolvement of state practice of …

Nafta Chapter 11 As Supraconstitution, Stepan Wood, Stephen Clarkson

All Faculty Publications

More and more legal scholars are turning to constitutional law to make sense of the growth of transnational and international legal orders. They often employ constitutional terminology loosely, in a bewildering variety of ways, with little effort to clarify their analytical frameworks or acknowledge the normative presuppositions embedded in their analysis. The potential of constitutional analysis as an instrument of critique of transnational legal orders is frequently lost in methodological confusion and normative controversy. An effort at clarification is necessary. We propose a functional approach to supraconstitutional analysis that applies across issue areas, accommodates variation in kinds and degrees of …

How To Think About Ppms (And Climate Change), Donald H. Regan

Book Chapters

The European Commission has apparently backed off from a proposal to tax imported goods produced by methods that generate excessive greenhouse gas emissions. So the issue of whether such a tax would be legal under the WTO has become slightly less urgent than it recently appeared. But Pascal Lamy the Director-General of the WTO still thought the possibility of some countries imposing emission-based trade restrictions was worth mentioning prominently in his speech to the Trade Ministers Conference in conjunction with the Bali Conference on climate change after Kyoto. And at that same conference, an official of the European Commission may …

Peking University School Of Transnational Law: A New Venture In International Legal Relations, Howard Bromberg

Articles

The School of Transnational Law (STL) is largely the work of two men of vision, Hai Wen, Vice-President of Peking University, and Jeffrey Lehman, former Dean of the University of Michigan Law School and President of Cornell University. Both were instrumental members of the Joint Center for China-U.S. Law and Policy Studies Institute (the Joint Center), founded in 2005, whose mission is to “nurture harmony between the Chinese and American legal systems through the dissemination of knowledge.” Hai and Lehman aspired to create a law school that would integrate China’s bold entry into global business and international diplomacy with a …

Analytical Jurisprudence And The Concept Of Commercial Law, John Linarelli

Scholarly Works

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond …