Law Commons^™

Recognition And Enforcement Of Foreign Judgments In American Courts And The Limits Of The Law Market Model, Michael E. Solimine

Faculty Articles and Other Publications

The law market model posits that the most appropriate resolution of choice of law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to a healthy competition among jurisdictions to supply the most efficient law. This model has been followed in several areas, most notably in the widespread enforcement, at least within …

Conditionality And Constitutional Change, Felix B. Chang

Faculty Articles and Other Publications

The burgeoning field of Critical Romani Studies explores the persistent subjugation of Europe’s largest minority, the Roma. Within this field, it has become fashionable to draw parallels to the U.S. Civil Rights Movement. Yet the comparisons are often one-sided; lessons tend to flow from Civil Rights to Roma Rights more than the other way around. It is an all-too-common hagiography of Civil Rights, where our history becomes a blueprint for other movements for racial equality.

To correct this trend, this Essay reveals what American scholars can learn from Roma Rights. Specifically, this Essay argues that the European Union’s Roma integration …

Update: International Human Rights, James Hart Mr.

Law Librarian Articles and Other Publications

This guide explains the procedures of the major international human rights systems because it is procedures that create the need to record or communicate. In other words, documents emanate from critical junctures in a process. The guide does not cover the content of the human rights themselves. Nor does it explicate the websites that hold the documents, but it will give you the information you will need to understand them. The guide will, however, give you URLs. With the information in the guide, you will be able to navigate your way through the websites without detailed directions. The first part …

The Published Works Of Sir Nigel Rodley, James W. Hart

Law Librarian Articles and Other Publications

This work is a comprehensive bibliography of the writings of Sir Nigel Rodley that was compiled for the Urban Morgan Human Rights Conference Honoring Sir Nigel Rodley that was held at the University of Cincinnati College of Law on October 28 and 29, 2017. It lists the books that he was the sole author of, books that he edited either solely or with others, chapters in books edited by others, journal articles, conference papers, book reviews, reports issued as part of his UN work, two manuscripts, introductions, forwards, comments, tributes, and obituaries. It does not list decisions of the UN …

Update To The European Human Rights System, James Hart Mr.

Law Librarian Articles and Other Publications

This is an update to The European Human Rights System, which described the founding, development, and bibliography of the Council of Europe (COE), the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and the European Court of Human Rights (ECtHR). It describes what has happened between the publication of that article in 2010 and the end of 2014. This update covers the alleviation of the pressures on the European Court of Human Rights, improvements in the publication and dissemination of the ECtHR’s documents, the Draft Treaty of Accession, and the case that is a barrier to …

Book Review, David R. Boyd, The Right To A Healthy Environment, Revitalizing Canada's Constitution, Bradford Mank

Faculty Articles and Other Publications

Boyd’s new book, The Right to a Healthy Environment, attempts to prove that Canadians would benefit if they amended their constitution to recognize the right to a healthy environment. Throughout this work, he emphasizes the general benefits of recognizing environmental rights as human rights and the positive impact recognizing these rights in the Canadian constitution would have on the lives of Canadian citizens. He examines the gradual domestic emergence of environmental rights both in Canadian law and from a global perspective. By including both viewpoints, Boyd attempts to identify the complexities and intricate questions that arise regarding various environmental issues …

Can Chinese Migrants Bolster The Struggling Economies Of Europe?, Felix B. Chang

Faculty Articles and Other Publications

This article examines new Chinese migration into Europe during a period of economic stagnation - more specifically, the movement of Zhejiangese merchants in Southeast Europe. The Zhejiangese migration pattern is diversifying from a predominantly petty merchant phenomenon to include the sophisticated operations of large-scale investors. It is therefore in the interests of host countries to foster, rather than restrict, this progression toward institutionalization. As such, governments should shape immigration and antidiscrimination policies to harness the potential of these migrants.

The Regulatory Turn In International Law, Jacob Katz Cogan

Faculty Articles and Other Publications

In the post-War era, international law became a talisman for the protection of individuals from governmental abuse. Such was the success of this "humanization of international law" that by the 1990s human rights had become "part of... international political and legal culture." This Article argues that there has been an unnoticed contemporary counter trend -- the "regulatory turn in international law." Within the past two decades, states and international organizations have at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal, that impose and enforce direct and indirect international duties upon …

The European Human Rights System, James W. Hart

Law Librarian Articles and Other Publications

This article presents the historical, organizational, and bibliographic information needed to research the Council of Europe’s regulation of human rights. It begins with an explanation of the reasons for the organization’s founding and then describes its statute, its structure, the Convention for the Protection of Human Rights and Fundamental Freedoms, the history of the changes in the treaty’s procedures, and its enforcement mechanisms. The final section provides similar treatment for another, less well known, of the Council’s human rights treaties, the European Social Charter

Competition And Control In International Adjudication, Jacob Katz Cogan

Faculty Articles and Other Publications

States are increasingly delegating or transferring powers to international organizations, and international organizations are increasingly pushing the limits of the powers conferred upon them. This expansion of powers embraces all areas of international authority-particularly lawmaking and adjudication. Recognizing that international organizations have gained this greater role, scholars have begun to think more deeply about the legitimacy, accountability, and good governance of international organizations, and States (as well as non-State entities, such as the European Union and nongovernmental organizations), knowing what is at stake, have become more forthright in seeking a seat at the table.

Part I of this paper explains …

Can Plaintiffs Use Multinational Environmental Treaties As Customary International Law To Sue Under The Alien Tort Statute?, Bradford Mank

Faculty Articles and Other Publications

The Alien Tort Statute (ATS) provides that the district courts shall have original jurisdiction over any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. Several decisions have rejected environmental claims under the ATS because they read the ATS narrowly to protect only the most fundamental international human rights such as those prohibiting torture or war crimes and have been unwilling to accept broader claims to a right to life or a healthy environment. In 2002, in Sarei v. Rio Tinto PLC, the District Court …

Noncompliance And The International Rule Of Law, Jacob Katz Cogan

Faculty Articles and Other Publications

Though it is said that compliance with international law is high, the international system contains few legislative, judicial, or executive processes analogous to those of States, and, consequently, the system's ability to self-correct and self-enforce is much more limited, creating gaps between aspiration and authority, procedures and policy. This Essay contends that noncompliance - particularly operational noncompliance - is a necessary component of less capable legal systems, such as international law. Though compliance, of course, is and should be the norm, those who discount operational noncompliance disregard the tension, which is acute in the international arena, between the necessity in …

The New Frontier Of Constitutional Confession Law - The International Arena: Exploring The Admissibility Of Confessions Taken By U.S. Investigators From Non-Americans Abroad, Mark A. Godsey

Faculty Articles and Other Publications

This Article is part two in an ongoing series. Part I, published at 51 DUKE L. J. 1703 (2002), argued that Miranda warnings should not be strictly required when U.S. agents interrogate non-U.S. citizens abroad. This Article picks up where the first left off, and asks the question: "In the absence of Miranda, do any provisions in the Bill of Rights restrict the ability of U.S. agents to obtain confessions from non-Americans abroad?"

The Article begins by examining the back up or default rules to Miranda in the domestic setting. These rules are the "due process involuntary confession rule," which …

International Criminal Courts And Fair Trials: Difficulties And Prospects, Jacob Katz Cogan

Faculty Articles and Other Publications

The question "Can international criminal courts provide defendants with fair trials?" is one that has barely been posed, let alone answered. The realm of international criminal justice is distinguished from domestic criminal justice not simply because accountability and sovereignty weigh heavier in this context, but also because of the absence of an effective counterweight to check these interests. One approach to the fair trial issue focuses on the rights delineated in the tribunals' statutes, rules of procedure and evidence, and case law. A second approach to the problem of fair trials asks, instead, whether these international courts have the independence …

Miranda's Final Frontier - The International Arena: A Critical Analysis Of U.S. V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey

Faculty Articles and Other Publications

In recent years, the FBI and other federal law agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and internet fraud schemes to terrorism. This trend will undoubtedly continue in the aftermath of September 11th. A constitutional question that will be of increasing importance in this context is whether, or to what extent, U.S. law enforcement officials (hereinafter "FBI") must provide Miranda warnings to non-U.S. citizens interrogated abroad who will later be tried in the United States.

The article first addresses whether future modifications to the Miranda doctrine are permissible after Dickerson. The article concludes that despite …

The Problem Of Obtaining Evidence For International Criminal Courts, Jacob Katz Cogan

Faculty Articles and Other Publications

International criminal courts will be judged by their fairness to defendants as well as to victims. In a very practical way, such claims will hinge, inter alia, on the ability of prosecutors and defendants to have reasonable access to probative evidence. But international criminal courts depend on states to provide them with evidence or access to evidence. The obligation of states to cooperate with international criminal tribunals in the production of evidence was at issue in the recent decision of the International Criminal Tribunal for the former Yugoslavia in the Blaki case (1997). That judgment and the provisions of the …

Federal Courts And World Civil Society, Gordon A. Christenson

Faculty Articles and Other Publications

This article proposes that in all international civil litigation federal judges should use international and foreign law pragmatically as an aid to decisions which further the substantive values of "world civil society." These values are similar to those of civil society in a federal republic with an elaborate bill of rights - to preserve voluntary associations of human dignity and enterprise whose spirit transcends the public order of sovereign states.

Richard Bonnot Lillich. In Remembrance Of A Civilized Scholar, Gordon A. Christenson

Faculty Articles and Other Publications

Tribute to international scholar, Richard Bonnot Lillich.

Core Freedoms In Nigerian And U.S. Constitutions: A Study In Difference, Gordon A. Christenson

Faculty Articles and Other Publications

This article compares core freedoms in the United States Constitution with similar constitutional experience encountered in the Nigerian Constitution. It is a study in difference, illuminated by learned papers and discussion of these issues by judges, lawyers, professors, journalists and activists in Nigeria. Moreover, to add a third dimension, differences and similarities in constitutional experiences are shown within the contemporary framework of international norms.

Attributing Acts Of Omission To The State, Gordon A. Christenson

Faculty Articles and Other Publications

In determining what conduct is attributable to the State under the international law of State responsibility, we normally work from specific behavior of particular government officials acting alone or in concert. Because the abstract "State" acts only through "agents" in control of the State or some part of its apparatus, any such acts of those individuals are attributed to the State if done under actual or apparent authority of the State. Responsibility of the State engages when such conduct causes harm in breach of international obligation.

Jus Cogens: Guarding Interests Fundamental To International Society, Gordon A. Christenson

Faculty Articles and Other Publications

The following sections attempt to analyze the concealed uses of the concept jus cogens and to offer an interpretation of its possibilities and dangers for a future world order. First, the inquiry is framed by introducing criteria for peremptory norms, the theme of dual formalism, and the problematic analogy to public order in municipal law. A review of the concept's contemporary development follows. The inquiry then explores ideological conflict and some questions of content, including two recent decisions against the United States. The final section revisits the myth of supernorms, including the problem of dissonance with ordinary norms, incommensurability of …

Kennan And Human Rights, Gordon A. Christenson

Faculty Articles and Other Publications

This essay seeks understanding of his view of normative thinking in foreign policy, whether moral or legal, and the implications from the perspective of human rights in an unfriendly world. It criticizes his conceptual presuppositions to gain clarity, posing paradoxes and dilemmas regarding their normative quality within the present structure of international relations.

The Uses Of Human Rights Norms To Inform Constitutional Interpretation, Gordon A. Christenson

Faculty Articles and Other Publications

Recent federal court of appeals decisions have relied on fundamental human rights norms to inform constitutional interpretation. This comment reviews the reasoning in those cases to identify possible constitutional uses of fundamental human rights norms and to suggest some conceptual framework for their use. The need for such a framework is illustrated by the cases themselves, which seem disparate and disjointed, with no discernible coherent philosophy, though each makes good sense when considered alone.

Executive Agreements And The Bypassing Of Congress, Joseph P. Tomain

Faculty Articles and Other Publications

The Transmittal Act has revealed a thorny issue for United States constitutional law. Specifically, the Act seeks to obviate those instances in which the Executive Branch attempts to abrogate fully the Legislature's role in foreign policy. The Constitution requires that all treaties be ratified by the Senate. Nevertheless, the Executive, simply by calling an international agreement a different name, may effectively bypass Congress. The Transmittal Act was not intended to resolve fundamental questions relating to the treaty making power of the Senate or Executive authority to enter into binding agreements with foreign countries without the consent of Congress. It was …

The United States-Rumanian Claims Settlement Agreement Of March 30, 1960, Gordon A. Christenson

Faculty Articles and Other Publications

On March 30, 1960, the United States and Rumania settled by agreement certain claims of American nationals against Rumania. The agreement provides for the payment by Rumania of a lump sum in discharge of those claims. In recent years the device of the en-bloc or lump-sum settlement of international claims has to some extent replaced the use of the mixed claims commission.

International Claims Procedure Before The Department Of State, Gordon A. Christenson

Faculty Articles and Other Publications

The problem of method in the presentation of international claims to the Department of State has received inadequate analysis.' Remedial or procedural aspects of international law have been viewed largely as international arbitration, adjudication of disputes before the International Court of Justice or the determination of claims by national claims commissions. 2 This article will consider some procedural aspects of presenting international claims to the Department of State for espousal to foreign governments or for other assistance. Since much international litigation between states originates in this fashion, it is appropriate that an inquiry into procedures should begin with the first …

International Judicial Assistance And Utah Practice, Gordon A. Christenson

Faculty Articles and Other Publications

This article will undertake to consider the present framework of Utah procedural law in relation to international judicial assistance. It will endeavor to suggest methods of handling problems of personal service, evidence, and proof of foreign law and will seek to point out some dangers along the way.