Law Commons^™

International Year In Review: Developments In International Criminal Law, Christopher L. Blakesley

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In this piece Professor Blakesley provides remarks on recent developments in International Criminal Law.

Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, The Role Of Human Rights, And Issues Of Extraterritoriality Under International Criminal Law, Christopher L. Blakesley

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This Article examines extradition and jurisdiction over extraterritorial crime, focusing on the relationship between jurisdiction and extradition in the broader context of human rights law. The authors challenge what they argue are chimerical, although strongly held beliefs in the incompatibility of European and United States criminal justice systems and extradition practices. They argue that cooperation in matters of international criminal law may be enhanced, while protection of human rights is promoted. The authors establish this possibility by breaking down the barriers to understanding that stem from the divergent European versus Anglo-American modes of analysis.

The authors first analyze the five …

Introduction To Greek Law, Christopher L. Blakesley

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Greek Law, developed under the stewardship of Professor Konstantinos Kerameus, takes on his character, being a solid, careful work of first rate scholarship. It presents the Greek legal system, the substance of each part of its civil public and penal law and procedure, in a series of well-written and insightful chapters by many of the best Greek scholars (in the United States and in Greece) on each subject. The book is important, because Greece is in the Common Market and Council of Europe, and because the continental and even the common law systems owe their development to the Ro- man-Byzantine …

International Law Principles Governing The Extraterritorial Application Of Criminal Law, Christopher L. Blakesley

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In this piece Professor Blakesley provides remarks on the differences and similarities between Germany and the United States on international principles of jurisdiction over extraterritorial crime.

The Modern Blood Feud: Thoughts On The Philosophy Of Terrorism, Christopher L. Blakesley

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Herman Melville brilliantly lets us feel, through Captain Ahab, the sensation of destructive rage, hatred and violence. Sadly, Melville's insight penetrates to the core of society, perhaps of each of us, in today's omnipresent terroristic melodrama. We have all suffered moments of vicarious terror and rage over the past few years as we watched news accounts of terrorist incidents, such as the downing of Pan Am Flight 103 over Lockerbie, Scotland. The melodrama of terrorism has penetrated each of our lives. We see it and feel the rage nearly on a daily basis. Innocent children, women and men aboard Pan …

Major Contemporary Issues In Extradition Law, Christopher L. Blakesley

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In this piece Professor Blakesley provides remarks on high crimes in international law, and the ability to extradite state and high government officials for committing them.

The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells

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The thesis of this Article is that substantive factors exert a powerful and often unrecognized influence over the resolution of jurisdictional issues, and have done so throughout our history. The chief substantive factors at issue are the government's interest iin regulating behavior on the one hand, and the individual's interest in enforcing constitutional restraints upon government on the other. Part I of this Article examines the relationship between jurisdictional rules and substantive consequences, Part II describes the Court's conventional account of federal courts doctrine in terms of jurisdictional policy and institutional roles, and Part III shows that the reasons set …

Terrorism, Law, And Our Constitutional Order, Christopher L. Blakesley

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We have all suffered moments of vicarious terror over the past few years as we watched news accounts of terrorist incidents, such as the downing of Pan Am Flight 103 over Lockerbie, Scotland. There, some institution, government, or group used innocent children, women, and men as fodder for their “war.” Some have claimed that the pusillanimous carnage was in retaliation for the slaughter of equivalent innocents aboard the Iranian Air Bus, similarly destroyed by American forces during the summer of 1988. Others suggested that it was committed by those interested in thwarting prospects of peace in the Middle East.

Combatting …

Jurisdiction As Legal Protection Against Terrorism, Christopher L. Blakesley

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On June 14, 1985, Robert Stethem was shot to death aboard a hijacked TWA airliner. On October 7, 1985, the Italian cruise-liner, Achille Lauro, was hijacked and the next day Leon Klinghofer was killed and thrown overboard. On Julyu 2, 1986, Rodrgio Rojas was mortally wounded when he was doused with gasoline and set afire while walking with protesters in Santiago, Chile. Soviets are said to leave booby-trapped dolls for Afghan Moujahadeen children. There is evidence that the United States government directly supports the Nicaraguan contras who, in waging their guerilla war, allegedly have killed innocent citizens. It is …

An Essay On Executive Branch Attempts To Eviscerate The Separation Of Powers, Christopher L. Blakesley

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The Reagan Administration has been aggressively attempting to arrogate power to the Executive branch and to undermine the separation of powers in the realms of foreign affairs. To Chain the Dog of War shows that for decades the Executive branch has moved to appropriate Congress’ war powers. The Reagan Administration not only has continued that tradition, but also has attempted to erode the Judiciary’s power to decide questions of law and fact concerning human rights and liberty in international extradition cases involving political offenses. The underlying rationale for this shift has been that decisions to make war or to condemn …

The Evisceration Of The Political Offense Exception To Extradition, Christopher L. Blakesley

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The Supplementary Convention to the Extradition Treaty between the Government of the United States of American and the Government of the United Kingdom of Great Britain and Northern Ireland, was signed on June 25, 1985, and transmitted to the U.S. Senate on July 17, 1985. This article will focus on the portion of the supplementary treaty which effectively eliminates the political offense exception, and on the statement made by the Legal Adviser to the Department of State, the honorable Judge Abraham D. Sofaer, made in favor of the Supplementary Treaty, on August 1, 1985. This article suggests that approval of …

Child Custody - Jurisdiction And Procedure, Christopher L. Blakesley

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Custody determinations traditionally have comprised a subcategory of litigation under the Pennoyer v. Neff exception for proceedings relating to status. Of course, states have the power to decide the status of their domiciliaries. It was natural, therefore, for the courts and scholars of the nineteenth and early twentieth centuries to consider domicile the sole basis of jurisdiction in custody matters. Gradually, judges and scholars began to challenge the notion that domicile was the sole basis and courts began to apply other bases, such as the child's presence in the state or personal jurisdiction over both parents. One commentator suggests that …

Why Professor Redish Is Wrong About Abstention, Michael Wells

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Most critics of the Supreme Court's abstention doctrines have attacked the substantive merits of rules that channel constitutional litigation away from federal courts and into state courts instead. In a recent article, Martin Redish raises an interesting objection to abstention from a different perspective. He addresses the institutional legitimacy of the rules and contends that whatever their merits, rules like these should be made only by Congress and not the Supreme Court, for they contravene Congress' intent to grant federal courts jurisdiction over constitutional claims against state actors. Part I of this article describes the context in which the choice …

The Abortion Controversey: A Study In Law And Politics, Albert M. Pearson, Paul M. Kurtz

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The Supreme Court's 1973 decision in Roe v. Wade, which held that women have a federal constitutional right to an abortion, has generated considerable controversy. The abortion issue became politically significant in the 1960's, when, emboldened by the Supreme court's recognition of a constitutionally based right of privacy, activists initiated a series of legal challenges to the validity of state abortion laws. Their efforts finally succeeded in 1973 when the Supreme Court in Roe and Doe v. Bolton struck down as unconstitutional the Texas and Georgia abortion laws. For those who objected to the result in Roe, however, …

The Putative Marriage Doctrine, Christopher L. Blakesley

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The classic putative marriage doctrine is substantive, ameliorative or corrective; it is designed to allow all the civil effects -- rights, privileges, and benefits -- which obtain in a legal marriage to flow to parties to a null marriage who had a good faith belief that their "marriage" was legal and valid. Most jurisdictions in the United States have developed equitable analogues to the putative spouse doctrine that provide all or part of the relief afforded by the classic doctrine.

If a marriage is declared to be null or void, that declaration is retroactive to the day that the null …

A Conceptual Framework For Extradition And Jurisdiction Over Extraterritorial Crime, Christopher L. Blakesley

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International law is the language by which nations assert and attempt to resolve competing legal interests. As with any other language, if the definitions of essential concepts become muddled, it is difficult to communicate. The traditional bases of jurisdiction over extraterritorial crime are essential concepts in the language of international law. The decision to grant or deny extradition, for example, often depends on whether the interested nation recognizes the basis of jurisdiction asserted by another. Confusion over the traditional bases of jurisdiction therefore risks disagreement over and denial of extradition.

United States courts have recently expanded the traditional bases of …

United States Jurisdiction Over Extraterritorial Crime, Christopher L. Blakesley

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The term jurisdiction may be defined as the authority to affect legal interests -- to prescribe rules of law (legislative jurisdiction), to adjudicate legal questions (judicial jurisdiction) and to enforce judgments the judiciary made (enforcement jurisdiction). The definition, nature and scope of jurisdiction vary depending on the context in which it is to be applied. United States domestic law, for example, defines and applies notions of jurisdiction pursuant to the United States constitutional provisions relating to the separation of powers. Within the United States, jurisdiction is defined and applied in a variegated fashion depending on whether a legal problem is …

The Practice Of Extradition From Antiquity To Modern France And The United States: A Brief History, Christopher L. Blakesley

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In order to understand the perceptions of extradition’s function and purpose in modern France and the United States, it is important to consider the evolution of thought regarding extradition. This article will focus on the history of extradition law as it has influenced contemporary law in the United States and France. The purpose of the article is to provide insight into the development of the “modern” extradition. Although the process has not always been executed by use of a treaty agreement, treaty authorized extraditions have existed since antiquity. Moreover, a treaty authorized extradition for common crimes, as opposed to political …

The Role Of Comity In The Law Of Federal Courts, Michael L. Wells

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Considerations of comity often require federal courts to defer to state courts when federal issues could be raised in state proceedings. Contexts in which such deference is required include Younger abstention, habeus corpus exhaustion and procedural default, and Pullman and Burford abstention. In this Article, Professor Wells demonstrates that the Supreme Court's opinions fail to make a distinction between cases where comity requires restraint and those where it does not. The Court's motive in invoking comity is not to decrease access to federal courts, but instead to strike a compromise between the individual's interest in a federal forum and the …

Conditional Liberation (Parole) In France, Christopher L. Blakesley

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Anglo-American parole owes its theoretical development and its early systematization, indeed its very existence, to France. It has been said that France has the genius of invention, but that too often the great ideas born in France are neglected there to find their baptism of success in other countries. This remark characterizes the history of the parole concept in France. Yet, the latest innovations being developed in France portend new possibilities for success in the rehabilitation of convicts. This section will trace briefly the history of conditional liberation the French counterpart of Anglo-American parole, and describe the development of the …

Federal Courts Intervention In Military Courts--Interrelationship Of Defenses And Comity, Wayne Mccormack

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In the case of Parisi v. Davidson the Supreme Court granted habeas corpus relief to a serviceman who was being court-martialed for disobedience to orders issued after he had been denied administrative discharge on a conscientious objector claim. Professor McCormack analyzes Parisi and uses it as a vehicle to examine the Court's present notions of comity and abstention.

The Federal Anti-Injunction Statute In The Aftermath Of Atlantic Coast Line Railroad, John Daniel Reaves, David S. Golden

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Last Term the Supreme Court rendered its decision in Atlantic Coast Line Railroad v. Brotherhood of Locomotive Engineers. This case involved the present anti-injunction statute, section 2283 of Title 28, which forbids federal court injunction of state court proceedings. Mr. Justice Black, writing for the majority, traced the roots of the statute's predecessor into the "fundamental constitutional independence of the states and their courts." He hinted that the act grew out of concern for constitutional inviolability of a state court's adjudicative process. Mr. Justice Black went on to announce that the anti-injunction statute is absolute; no judicially created exceptions …