Law Commons^™

Computer Technology For The Benefit Of The Rule Of Law: Communication And Research, Carl A. Yirka

Fordham International Law Journal

This Essay suggests a number of ways in which rule of law partners in the United States and abroad with modest technical background might more easily communicate, plan, coordinate, and research joint projects. Without the new computer technologies it would be very difficult to conduct rule of law projects between partners in the United States and Russia. Recent advances in technologies now make communication with colleagues across the world by computer easier than ever.

Rethinking Mcclesky V. Kemp: How U.S. Ratification Of The International Convention On The Elimination Of All Forms Of Racial Discrimination Provides A Remedy For Claims Of Racial Disparity In Death Penalty Cases, Robin H. Gise

Fordham International Law Journal

This Note addresses U.S. obligations under CERD in the context of racial disparity in the imposition of the death penalty and proposes courses of domestic and international action. Part I examines the historical racial disparity in the imposition of the death penalty in the United States. It discusses the U.S. Supreme Court's decision in McClesky to deny relief to a death row inmate who demonstrated that race influenced whether a death sentence was imposed. Part I also explores the development of CERD and discusses CERD's standard for proving discrimination based on a showing of racially discriminatory effect. Finally, Part I …

Know Your Customer Regulations And The International Banking System: Towards A General Self-Regulatory Regime, Daniel Mulligan

Fordham International Law Journal

This Comment discusses the implementation of “Know Your Customer” (KYC) regulation and its effect on the international banking system. Part I of this Comment explains general legal concepts and trends in international money laundering including background of the drug trade, money laundering process and techniques, and U.S. and international regulatory efforts to combat the money laundering problem. Part II examines the history and the purpose of KYC principles and the proposed regulations. Part III maintains that the rejection of the proposed regulations is appropriate. This Comment concludes that the U.S. government should permit U.S. banks to self-regulate and that a …

The Recent Evolution Of The European Union, Marcelino Oreja

Fordham International Law Journal

I believe that we need to compare the constitutional systems of the two most important players on the international stage to obtain a more clear idea of the difficulties, the problems, and also the different attitudes that may exist on both sides. Mutual comprehension between the United States and the European Union, and transatlantic cooperation in general, are essential for the structuring of international relations. It is useful to take a brief look at what is changing in Europe. If we leave aside the different reactions to the relative successes and failures of the Treaty of Amsterdam, as well as …

The Treaty Of Amsterdam In Historical Perspective: Introduction To The Symposium, Roger J. Goebel

Fordham International Law Journal

On February 27-28, 1998, the Center on European Union Law of the Fordham Law School was pleased to present a program, “The European Union and the United States: Constitutional Systems in Evolution,” intended to provide a clear description of the impact of the Treaty of Amsterdam upon the European Union (or “EU”), and to enable some valuable points of comparison and contrast between constitutional and legal developments within the European Union and the United States. This symposium issue of the Fordham International Law Journal publishes a series of papers presented at the conference centering on the Treaty of Amsterdam, signed …

The Impact Of The Amsterdam Treaty Upon The Court Of Justice, Ole Due

Fordham International Law Journal

The Intergovernmental Conference leading up to the adoption of the Maastricht Treaty was probably the first during which the case law of the Court of Justice formed a topic of discussion. The result of this discussion was certainly positive in relation to the new Treaty's general rules. But, clearly, criticism had also been voiced during the discussion. This criticism can be seen from two protocols to the Treaty, both drawn up as unfortunate reactions to specific rulings. It is important that the establishment of a closer cooperation between some Member States does not permit them to escape from the rules …

The Commission's Role In The Igc's Drafting Of The Treaty Of Amsterdam, Michel Petite

Fordham International Law Journal

This essay shall attempt to describe initially how the Commission approached the Amsterdam negotiation in the first place. It will explore the institutional issues that it addressed and the strategies it implemented. It then evaluates the likely impact of the new provisions of the Treaty of Amsterdam upon the Commission.

An Appraisal Of The Treaty Of Amsterdam From The Perspective Of A Member Of The European Parliament, Laurens Jan Brinkhorst

Fordham International Law Journal

When one has such learned predecessors, representing the two powerful institutions, who give such a balanced view of the Treaty of Amsterdam (or “Amsterdam Treaty”), what more can a simple parliamentarian say? I think my first comment would be, Amsterdam--yes, the worst has been avoided. I think that this comment is an honest compliment to the efforts of my predecessors during the Intergovernmental Conference (“IGC”). The outcome could have been much worse.

Social Policy And Employment Aspects Of The Treaty Of Amsterdam, Patrick Venturini

Fordham International Law Journal

Commenting on employment and social policy gives me the opportunity to start by pointing out how positive the outcome of the Treaty of Amsterdam (or “Treaty”) was in those fields. Indeed, the following four main fields are concerned with substantial extensions or reinforcements of European Community (“EC” or “Community”) competencies and responsibilities following the Amsterdam Summit: employment, social policy, equality between men and women, and fundamental rights and non-discrimination. Last but not least, the strengthening of the co-decision procedure, which is now the principal legislative procedure and requires a joint decision of the Council and the European Parliament, does affect …

Subsidiarity And Transparency, Christian Timmermans

Fordham International Law Journal

Subsidiarity and transparency are entirely different concepts. … However different, both concepts are twins in the continuing quest of the Framers of European integration to increase the legitimacy of Community decision-making vis-à-vis the citizens. Indeed, there always has been, and there still is a very serious problem of lack of legitimacy. … Increasing the powers of the European Parliament is not sufficient to bridge this legitimacy gap, although the Maastricht Treaty did make progress in that respect, for instance, by introducing the co-decision procedure. The problem is much vaster. At any rate, the negative experiences of the ratification discussions on …

The European Union In International Affairs: Recent Developments, Hugo Paemen

Fordham International Law Journal

I have been invited to discuss the changing role of the European Union (or “EU”) in the world today. Let me start by highlighting some random examples of EU action in international affairs during 1997. As Europe continues to integrate domestically, it will be forced to reassess the image that it projects in the world. As it does so, institutional reform will become even more compelling if the European Union is to conduct the coherent external policy that most people in the world expect of it. Some had hoped that last the June 1997 Summit in Amsterdam would at least …

The Treaty Of Amsterdam's Changes To The Common Foreign And Security Policy Chapter And An Overview Of The Opening Enlargement Process, Giorgio Maganza

Fordham International Law Journal

The European Union (“Union” or “EU”) is an important actor in the international arena. The Union behaves and acts as a political entity towards the outside world and it is perceived as such. That is certainly the case for international economic relations, where the European Community (“EC” or “Community”) has played a significant role as a major partner in multilateral negotiations for several years now. It is more frequently the case with respect to foreign policy matters, as a result of the choice made by the signatories to the Maastricht Treaty (“Treaty on European Union” or “TEU”) in which the …

The Erotic Of Torts, Carol Sanger

Faculty Scholarship

"What kind of feminist would be accused of sexual harassment?" asks Jane Gallop (p. 1). Gallop quickly provides her own challenging answer: "the sort of feminist ... that ... do[es] not respect the line between the intellectual and the sexual" (p. 12). Gallop is firm and unrepentant about not respecting this line: "I sexualize the atmosphere in which I work. When sexual harassment is defined as the introduction of sex into professional relations, it becomes quite possible to be both a feminist and a sexual harasser" (p. 11). Figuring out what this means – and what its implications are for …

The Threat Or Use Of Nuclear Weapons: Discernable Legal Policies Of The Judges Of The International Court Of Justice, Kazuomi Ouchi

Connecticut Journal of International Law

By a letter dated 19 December 1994, the Secretary-General of the United Nations officially communicated to the Registrar of the International Court of Justice the decision taken by the General Assembly of the United Nations to submit the question of the legality of the threat or use of nuclear weapons to the Court for an advisory opinion. The General Assembly noting, inter alia, that Article 96, paragraph 1, of the United Nations Charter empowers the General Assembly to request the Court to give an advisory opinion on any legal question, decided to request the Court to urgently render its advisory …

Persistent Organic Pollutants: Regime Formation And Norm Selection, Christina S. Chen

Connecticut Journal of International Law

Persistent Organic Pollutants (POPs) are hazardous and potentially life-threatening toxic chemicals. The international community recently agreed to create an international legally binding instrument to control POPs.' Although myriad questions confront the creation of a new regime, this Comment will focus on the types of norms and control strategies that should be devised in order to establish an effective POPs regime. In order to analyze the issue of norm crafting, Part I of this Comment outlines the background of the POPs problem and the current efforts of the United Nations to establish consensus on the need for a POPs regime. Part …

Law, Venture Capital, And Entrepreneurism In Japan: A Microeconomic Perspective On The Impact Of Law On The Generation And Financing Of Venture Businesses, Eric C. Sibbitt

Connecticut Journal of International Law

Part one of this article attempts to demonstrate through a microeconomic framework how the legal, economic, and cultural forces underlying the Japanese financial system impact the funding of venture businesses in Japan. In a venture finance market, the microeconomic decisions of entrepreneurs and venture investors determine how much capital is ultimately supplied to finance venture businesses. Investors, the suppliers of capital to a venture market, seek to ensure the highest possible payback on investment by maximizing expected returns. Rational entrepreneurs, on the demand side of the market for venture capital, seek the use of investor capital to pursue income-generating opportunities …

Building An International Criminal Court For The 21st Century, Bryan F. Macpherson

Connecticut Journal of International Law

This article proposes significant, yet realistic, enhancements to the proposed court's jurisdictional scheme that could vastly increase its usefulness without undermining valid national interests. The proposed court could exercise jurisdiction over certain serious international crimes provided that the affected states have filed declarations accepting the court's jurisdiction over the crime. The proposal assumes that states would file declarations prospectively accepting the court's jurisdiction. In theory, this would set up an international criminal justice system that would operate without requiring any further state consent. However, states also wish to reserve the right to try international criminals in their own courts. The …

Partial Entrenchment Of A Bill Of Rights: The Canadian Model Offers A Viable Solution To The United Kingdom's Bill Of Rights Debate, Vincent P. Pace

Connecticut Journal of International Law

For three decades the United Kingdom has debated whether or not to adopt a bill of fights.' The United Kingdom does not have a constitution that codifies fundamental rights and entrenches these rights from government encroachment. Instead, precedent, customs, conventions, and Acts of Parliament collectively safeguard basic rights.3 Parliament, by simple majority approval, maintains the power to modify or repeal rights guaranteed by any of these sources. The judiciary cannot protect fundamental fights from executive or legislative encroachment because judges in the United Kingdom do not possess the power of judicial 4 review.

This debate has generated considerable controversy because …

The Process Of Terry-Lawmaking, Daniel C. Richman

Faculty Scholarship

The organizers of this Conference obviously gave a lot of thought to its structure. We started off with a session that showed the Supreme Court at its best, working under the gentle leadership of Chief Justice Warren, and guided by the sage counsel of Justice Brennan, to balance the demands of the Fourth Amendment with the exigencies of street encounters. Now we come to a session in which the Supreme Court comes off well, not merely in one, but in both papers. For Steve Saltzburg, Terry itself may not have been perfect, but, over time, the Court has made it …

Law In The Backwaters: A Comment Of Mirjan Damaška's Evidence Law Adrift, Samuel R. Gross

Reviews

The most problematic part of Professor Mirjan Damaška's fine book is the title.' Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over "questions of law," and that this division is necessary for the operation …

Anchors And Flotsam: Is Evidence Law 'Adrift'?, Richard D. Friedman

Reviews

Difference, as well as distance, yields perspective. A comparison of legal systems may search for common underlying principles, or for lessons that one system might learn from another. But it may also be aimed primarily at illuminating one system by light shed from another. This is the aim of Evidence Law Adrift, Mirjan Damagka's elegant study of the common law system of evidence, and he is ideally suited for the task. Born and schooled in Continental Europe, he has lived and taught in the United States for twenty-five years. His relation to the common law system of evidence is, I …

Quit-Claiming The Doctrine Of Discovery: A Treaty-Based Reappraisal, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The discovery doctrine is one of the baseline legal concepts that has worked to seriously disadvantage the land rights of indigenous nations in the United States because it asserts, as one of its definitions, that the "discovering" European nations and their successor states, gained legal title to Indian lands in North America. The author argues, using comparative colonial and early American treaty, legislative, and other historical data, that this definition is a legal fiction. In historical reality, discovery was merely an exclusive and preemptive right that vested in the discovering state the right of first purchase.

Review Of Political Theory For Mortals: Shades Of Justice, Images Of Death, Donald J. Herzog

Reviews

Daring to go where plenty of mortals have gone before him, John Seery sets out to explore death. The resulting volume, more episodic than sustained, is brash, even feverishly energetic, as though Seery is desperately cheery about his chosen topic. This book is by turns witty and irritating, its interesting conjectures and lines of argument intimately mixed up with what this stodgy reader saw as frivolous posturing. It's easy to lampoon Seery's prose style; in fact, all one needs to do is quote it. Socrates, we learn, is "a blowhard buffoon," or at least readers might reasonably see him that …

Business Subsidies And The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

In this Article, I seek to respond to the Court's overture with a treatment of of subsidies under the dormant Commerce Clause that moves progressively from the general to the specific. Part I examines key Supreme Court cases to show that the basic question of whether state business subsidies are constitutional remains open and important. Part II then turns to how that question should be resolved, focusing on whether subsidies are fairly distinguishable from ostensibly equivalent, and concededly unlawful, discriminatory tax relief. The thrust of Part II is that both precedent and policy support the traditional, pre-West Lynn Creamer" view …

The Newly Found "Compassion" For Sexually Violent Predators: Civil Commitment And The Right To Treatment In The Wake Of Kansas V. Hendricks, Elizabeth Weeks

Scholarly Works

In light of heart-wrenching stories of sexual abuse and public demands for safety, the Kansas v. Hendricks case presented the Supreme Court with compelling facts on which to uphold the Kansas commitment strategy. After all, the statute prevented the release of a man whose history of sex crimes, incarceration, and institutionalization spanned nearly two decades, and who admitted he still had sexual desires for children but could not control his urges. Faced with that evidence, the Court would have been hard-pressed to strike down the Kansas statute by finding that such a predator received inadequate treatment for his disorder, or …

Naked Politics, Federal Courts Law, And The Canon Of Acceptable Arguments, Michael Wells

Scholarly Works

In this Article, I argue that there is a wide gap between the aspirations and the actual operation of Federal Courts law. I maintain that, despite the conversational rule forbidding it, raw substance in fact wields significant influence in the resolution of Federal Courts issues. For example, the familiar argument that federal courts should be favored because they are more "sympathetic" to federal claims is really an appeal to naked politics. The empirical premise of this and other arguments of naked politics is that there are structural differences between federal and state courts which affect the outcomes of close cases, …

Guide To Law And Literature For Teachers, Students, And Researchers, Paul J. Heald

Scholarly Works

Companion text to Literature and Legal Problem Solving: Law and Literature as Ethical Discourse

Disability, Deference, And The Integrity Of The Academic Enterprise, Anne Proffitt Dupre

Scholarly Works

Congress has established a complex set of laws regarding the education of disabled students. This Article discusses the obligations the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the Individuals with Disabilities Education Act impose on schools and focuses on how courts interpreting these statutes address the decisions of educators regarding how best to educate disabled students. Professor Dupre brings to light a striking contrast between how courts regard the decisions of educators in higher education as opposed to the decisions of educators in primary and secondary schools, routinely according the former considerable deference while often …

The Holder In Due Course Doctrine As A Default Rule, Gregory E. Maggs

GW Law Faculty Publications & Other Works

The "holder in due course" doctrine, as implemented by Article 3 of the Uniform Commercial Code, says that a party who acquires a negotiable instrument in good faith, for value, and without notice of certain facts, and who also meets some additional requirements, takes the instrument free of competing claims of ownership and most defenses to payment. The standard justification for immunizing a holder in due course from claims and defenses is that the immunity will encourage beneficial commercial transactions. The standard explanation for the various requirements for attaining holder in due course status - good faith, value, lacking notice …

Is Roe V. Wade Obsolete?, Robert A. Destro

Scholarly Articles

No abstract provided.