Law Commons^™

Birthright Citizenship In The United Kingdom And The United States, Michael Robert W. Houston

Vanderbilt Journal of Transnational Law

The common law concept of territorial birthright citizenship is the foundation for the Fourteenth Amendment's Citizenship Clause, which confers citizenship on those born within the United States and "subject" to its "jurisdiction." Likewise territorial underpinnings were the basis for over 375 years of birthright citizenship within the United Kingdom. Contemporary discourse with respect to territorial birthright citizenship, however, has shifted from its common law basis and now focuses on whether citizenship ought to inhere in children born to illegal immigrants. In the United Kingdom, the British Nationality Act of 1981 abandoned territorial birthright citizenship in favor of parentage based citizenship. …

Fishing For The Smoking Gun, Y. Daphne Coelho-Adam

Vanderbilt Journal of Transnational Law

Industry-wide tort litigation, such as tobacco and gun litigation, poses a new problem for extraterritorial discovery. These suits allege conspiracies on the part of the tobacco and gun industries to conceal the dangers of their products from the public. Much of the evidence needed to prove the industries' knowledge is in their possession. These industries are international with companies located in the United Kingdom. Under U.S. discovery law the evidence is discoverable, but such is not the case under British discovery law. Therefore, the evidence and witnesses located in the United Kingdom are outside the grasp of U.S. plaintiffs. The …

Europe And Overseas Commodity Traders V. Banque Paribas London: Zero Steps Forward And Two Steps Back, Paige K. Willison

Vanderbilt Journal of Transnational Law

While international securities transactions have become the norm in today's globalized economy, such transactions necessarily implicate the laws of more than one nation, thereby creating both conflict and confusion. Due to the depth and breadth of U.S. securities laws, plaintiffs often prefer to sue in the United States under U.S. law. Yet inappropriately applying U.S. law to transnational transactions may offend notions of comity. This Note discusses the different tools used to decide the following jurisdictional issues. First, under what circumstances do U.S. anti-fraud rules apply to securities transactions? Second, under what circumstances do U.S. registration laws apply? Over the …

Phantom Menace Or New Hope: Member State Public Tort Liability After The Double-Bladed Light Saber Duel Between The European Court Of Justice And The German Bundesgerichtshof In Brasserie Du Pecheur, Markus G. Puder

Vanderbilt Journal of Transnational Law

This Article examines the interactions between European Community and national law, in the context of Member State public tort liability. Specifically, the Article analyzes Brasserie du Pecheur v. Federal Republic of Germany, a case that pitted German beer purity legislation against requirements of Community law. In that case, the European Court of Justice (ECJ) ruled that acts or omissions of the national legislator may, under certain conditions, give rise to Member State public tort liability, which is adjudicated in the national court systems. The German Federal Court of Justice dismissed the case after finding that the conditions of state liability …

Not Twice For The Same: How The Dual Sovereignty Doctrine Is Used To Circumvent "Non Bis In Idem", Dax E. Lopez

Vanderbilt Journal of Transnational Law

Today, it is quite possible for a criminal defendant who has violated the laws of several countries with one criminal act to be subject to multiple prosecutions. In situations where two countries share concurrent criminal jurisdiction, it is unclear whether the defendant would be able to rely on some level of double jeopardy protection. International law currently does not obligate a sovereign state to recognize another state's penal judgments, thus allowing states to prosecute a defendant regardless of any legal action that may have been previously taken against the defendant. Several countries, however, have chosen to provide defendants with at …

Negotiation And Native Title: Why Common Law Courts Are Not Proper Fora For Determining Native Land Title Issues, Geoffrey R. Schiveley

Vanderbilt Journal of Transnational Law

The displacement of indigenous populations is an obvious but often-overlooked consequence of worldwide European colonization. Until relatively recently, the rights of these groups have consistently been held to lower standards of protection than those of their colonizing counterparts, partly through the use of doctrines such as terra nullius. While earlier decades established the groundwork for recognition of these rights, in the 1990s native rights issues became of greater importance to both the international community and individual nations. Some of this heightened interest can be attributed to a series of high-profile common law court cases that provided native populations with favorable …

Women And Globalization: The Failure And Postmodern Possibilities Of International Law, Barbara Stark

Vanderbilt Journal of Transnational Law

This Article examines the role of international law, particularly human rights law, as it relates to the process of globalization and its effects on women. Initially, the Article sets the stage by describing the course of globalization and the dramatic impact it has had on the world economy. The Author next examines the multiple and contradictory consequences of globalization for women.

The Article approaches this analysis from two perspectives. First, from a 'classic perspective," the Author contends that international law is the only legal system with the potential to regulate the principal agents of globalization--multinational corporations, banks and investment firms, …

Corporate Governance In A Global Environment: The Search For The Best Of All Worlds, Timothy L. Fort, Cindy A. Schipani

Vanderbilt Journal of Transnational Law

This Article reflects on the various visions of corporate governance. Initially, the Article reviews the contractarian and communitarian theories of the corporation. The communitarian theory views the corporation as a separate entity, with social responsibilities not only to the shareholders but to the firm's other stakeholders and society at large. On the other hand, the contractarian approach considers the firm's shareholders as the primary constituency to whom management is accountable. Voluntary contracting and market forces align the interests of management and shareholders. The Article next analyzes salient features of corporate governance in the United States, Japan, and Germany. The United …

Setting Arbitrators' Fees: An International Survey, John Y. Gotanda

Vanderbilt Journal of Transnational Law

This Article examines the compensation policies of international arbitrators. Specifically, the Article details the results of a survey of individuals who practice in the area of international arbitration.

Initially, the Article describes the different methods of calculating the fees of the arbitral tribunal, discussing the relative advantages and disadvantages of each method. The study concludes that most arbitrators calculate their fees using a time-based method, except when the arbitral institution requires that their fees be determined under the ad valorem method.

Next, the Article examines arbitrators' policies regarding cancellation and commitment fees. Survey results highlighted confusion about whether arbitrators were …

Prosecuting The "Fog Of War?, Christopher D. Booth

Vanderbilt Journal of Transnational Law

In the Fall of 1999, the Associated Press reported a story of an alleged massacre of Korean civilians, conducted by U.S. troops at the beginning of the Korean War in the hamlet of No Gun Ri. The story had an incendiary effect, both in the United States and abroad. The story of an incident from half-a-century ago caused many to reexamine the conduct of American forces in that war, the current security arrangements in East Asia, the U.S.-R.O.K. relationship, and the wisdom and ability of modem Americans to investigate, evaluate, and judge historical events from our current historical and cultural …

Final Exit: Should The Double Effect Rule Regarding The Legality Of Euthanasia In The United Kingdom Be Laid To Rest?, Brendan A. Thompson

Vanderbilt Journal of Transnational Law

This Note explores the double effect rule that currently governs physician-assisted suicide cases in the United Kingdom. Recent events in the British medical and legal community have raised serious questions about the rule's adequacy, and have arguably created an environment in which Parliament must reexamine the validity of both the double effect rule and the laws governing active euthanasia.

After providing some historical background regarding the origins and development of the double effect rule, this Note surveys recent developments such as changing attitudes towards euthanasia and the public reaction to the Moor verdict, both of which have created an environment …

Who Asked You?: The Appropriateness Of U.S. Leadership In Promoting Religious Freedom Worldwide, Nichol J. Starr

Vanderbilt Journal of Transnational Law

Government endorsed and government imposed religious persecution is a growing phenomenon worldwide. From Central America to the Far East, people are arrested, tortured, and even killed for having and expressing their faith, despite the existence of universal covenants expressing acceptance of religious differences as among the most basic of human rights. Seeing the apparent futility of U.N. and other international efforts to curb such persecution, the U.S. Congress in 1998 passed the International Religious Freedom Act. Faith-based religious persecution--and the United States' role in combating it--first took center stage in American politics during the IRFA's passage, and most recently has …

The Legacy Of Geographical Morality And Colonialism: A Historical Assessment Of The Current Crusade Against Corruption, Padideh Ala'i

Vanderbilt Journal of Transnational Law

This Article examines the legacy of the rule of geographical morality--that is, the norm by which a citizen of a country in the North may engage in acts of corruption in any country in the South, including bribery and extortion, without the attachment of any moral condemnation to those acts. Part I of the Article begins by reviewing the impeachment trial of Warren Hastings, who served as the Governor of Bengal from 1772 until 1785, on charges of bribery and corruption. It was during that impeachment proceeding when the words "principle of geographical morality" were used to describe Hastings' defense. …

European Integration: Past, Present, And Future, Martin A. Rogoff

Vanderbilt Journal of Transnational Law

From its inception in the 1950s until the early 1990s, the European Union (EU) was largely the creation of politicians, jurists, and technical experts. Its effective sphere of operations was confined for the most part to economic matters. The Single European Act, which entered into force in 1987 and called for the completion of the economic integration project by 1992, marked the end of what might be termed the first, or economic, phase of European integration. With the entry into force of the Treaty on European Union (Treaty of Maastricht) in 1993, a second, or political, phase of European integration …

Information Warfare And Neutrality, George K. Walker

Vanderbilt Journal of Transnational Law

This Article examines Information Warfare--that is, actions taken to affect adversary information and information systems conducted during a crisis or conflict to achieve or promote specific objectives against the adversary. The Article begins with an explanation of the development and structure of the Internet. It then cites examples of the use of information strategies in recent conflicts.

Next, the Article turns to a discussion of the principles of neutrality in the U.N. Charter era. Specifically, the Article examines neutrality in the context of land warfare, naval warfare, aerial warfare, and outer space. Next, the Author discusses application of principles from …

Clinging To Democracy: Assessing The Russian Legislative-Executive Relationship Under Boris Yeltsin's Constitution, Ian R. Brown

Vanderbilt Journal of Transnational Law

The 1993 Constitution of the Russian Federation has received harsh criticism as a document that confers strong powers upon the executive at the expense of a much weaker legislature. Such a disparity is understandable, as the Constitution was conceived out of the violent confrontation between President Boris Yeltsin and the rebellious communist-nationalist Duma in October 1993. Following the adoption of the Constitution in December 1993, many observers predicted a return to dictatorship in Russia.

Yet in practice, despite much heavy-handedness on the part of the president during the Yeltsin administration, the 1993 Constitution and the institutions it created have survived …

Consolidating Democracy On A Troubled Continent: A Challenge For Lawyers In Africa, Okechukwu Oko

Vanderbilt Journal of Transnational Law

African countries during the post-colonial era have struggled to establish democratic governments, too frequently succumbing to authoritarian, usually military, rule. This instability, as nations swing from one regime to another, has hindered the economic growth and respect for civil rights that citizens had hoped would be the legacy of independence. Despite such abuses, both the elite and the masses in Africa recognize that democracy represents the best hope for future stability. In countries like Nigeria, citizens are demanding the replacement of corrupt, paternalistic military officers with democratic, civilian rule.

Even the election of civilian administrations, however, offers no guarantee that …

The Reach Of Icc Jurisdiction Over Non-Signatory Nationals, Jordan J. Paust

Vanderbilt Journal of Transnational Law

A new International Criminal Court (ICC) was created on July 17, 1998 under the Rome Statute adopted by the United Nations Diplomatic Conference on Plenipotentiaries on the Establishment of an International Criminal Court. Under the Statute, the ICC will have jurisdiction over crimes of genocide, certain crimes against humanity, and certain war crimes, leaving the crime of aggression for further definition.

Nonetheless, there are certain preconditions to the exercise of such jurisdictional competence, as noted especially in Articles 12-14 of the Statute. In general, the Court can exercise jurisdiction if a "situation" or case (1) is referred to the Prosecutor …

Educating Russia's Future Lawyers--Any Role For The United States?, Jane M. Picker, Sidney P. Picker, Jr.

Vanderbilt Journal of Transnational Law

In the wake of the devaluation of the Russian ruble in 1998 and the resulting flight of foreign investment, which was exacerbated by allegations of massive corruption and capital flight at the highest levels of government in 1999, the question of an appropriate role for the United States in helping Russia to establish an environment able to attract and retain foreign and domestic capital, to maintain a viable globally integrated market-based economic system, and to create a stable civil society, is under discussion.

The authors believe that a viable market economy will not flourish in Russia until a more stable …

Unlabel Their Frankenstein Foods!: Evaluating A U.S. Challenge To The European Commission's Labeling Requirements, John S. Fredland

Vanderbilt Journal of Transnational Law

The recent development of genetically-modified agriculture has been accepted enthusiastically by the U.S. agricultural producers, but the European public has expressed fear that the so-called "Frankenstein Foods" may be harmful to health and the environment. Faced with this public outcry, the European Commission. passed regulations, which mandated that food products containing genetically-modified agricultural products be labeled as such. Although the European Commission appears to have passed its labeling requirements without express or hidden protective intent, the regulations stand to make U.S. producers less competitive in the European market than their European counterparts. This Note contends that the United States should …

East Timor, The U.N. System, And Enforcing Non-Recognition In International Law, Thomas D. Grant

Vanderbilt Journal of Transnational Law

This Article seeks to assess how the U.N. system has enforced regimes of non-recognition under international law. Claims by certain communities to constitute states and claims by some states to hold title to certain pieces of territory have met with opposition from various quarters. At times, the United Nations has attempted to organize international non-recognition of such claims. The claim by the state of Indonesia to hold title to East Timor presents a vivid and important example of an attempt to set up a regime of non-recognition by the United Nations.

The Article examines how the United Nations addressed the …

A Technological Dream Turned Legal Nightmare, Brandon E. Ehrhart

Vanderbilt Journal of Transnational Law

The U.S. Global Positioning System (GPS) provides precise positioning information to anyone in the world, regardless of nationality, as long as they have access to an inexpensive receiver. However, in managing and providing the GPS for no charge, the United States may have opened itself to worldwide tort exposure. This Note analyzes U.S. liability for negligently operating the GPS under the Federal Tort Claims Act (FTCA) in four categories.

First, this Note examines the transformation of the GPS from its domestic military beginnings to its current role as the foremost radionavigation technique in history and as a vital tool to …

Combating Copyright Infringement In Russia: A Comprehensive Approach For Western Plaintiffs, David E. Miller

Vanderbilt Journal of Transnational Law

This Article addresses several measures that U.S. and European firms can undertake to combat copyright infringing activities in Russia. First, the Article attempts to dispel the notion that Russian law and the Russian government are inadequate to deal with copyright and piracy problems. In fact, recent surveys suggest that foreign plaintffs have achieved some success in arbitrazh courts. Furthermore, Russian authorities have begun to take steps to ensure that these decisions will be enforced.

Second, the Author suggests that the United States and European nations can apply pressure on the Russian Federation to ensure compliance with copyright laws in the …

Commercial Norms, Commercial Codes, And International Commercial Arbitration, Christopher R. Drahozal

Vanderbilt Journal of Transnational Law

This Article examines whether the incorporation of commercial norms into commercial codes is an appropriate law-making strategy. Most commercial codes, including the Uniform Commercial Code, regard common business practices as an important source for courts to consider when resolving contract disputes. Yet some scholars criticize this incorporation strategy, arguing that reliance on commercial norms is often inappropriate and may distort the true nature of the parties' agreement. Reliance on commercial norms does restrict the ability of contracting parties to allocate part of their agreement to extra-legal means of enforcement. Nevertheless, this Article asserts that those costs may be outweighed by …

Polish Communications Law: Telecommunications Takes Off In Transition Countries But At What Price Are They Becoming Wired?, Jennifer L. Feltham

Vanderbilt Journal of Transnational Law

Internationally, the urge to expand and improve telecommunications services is spreading. Transition countries, attempting the leap from Third World status to becoming world leaders, have caught the fever and have attempted to reform their regulations governing telecommunications. In large part these laws have induced slow liberalization of the communications sector with an intrusive regulatory agency guarding every step taken towards privatization. The World Trade Organization's General Agreement on Trade in Services (GATS) encourages transition countries to use privatization as a way to increase funding for communications equipment. Many transition countries signed the GATS agreement in the hope of attracting international …

Basic Rights And Anti-Terrorism Legislation, Kevin D. Kent

Vanderbilt Journal of Transnational Law

This Note addresses whether Britain's Criminal Justice (Terrorism and Conspiracy) Act (CJTCA), which permits police officer opinion testimony as to whether a terrorist suspect is a member of an illegal terrorist organization and allows adverse inferences to be drawn from that suspect's silence, can be reconciled with the fair trial provisions of the Human Rights Act (HRA). Part II of this Note describes the background of the CJTCA, concentrating on the reasons for its rushed passage and on the evidentiary changes it makes to trials of defendants charged with terrorist offenses. Part II describes the background and mechanics of the …

Revising Shonenho: A Call To A Reform That Makes The Already Effective Japanese Juvenile System Even More Effective, Masami I. Tyson

Vanderbilt Journal of Transnational Law

Shonenho, the Japanese Juvenile Law, is based on ideas of protection, love, and tolerance towards the juvenile offender. Its main purpose is to protect him from the stigma of the crime or delinquent act that he has committed, as well as from the environment in which he was when he committed the crime or delinquent act. Punishment does not have a role within the Japanese juvenile system. Rather, Shonenho strives to reform the juvenile so that he can return to society as a fully functional member within a relatively short period of time. Looking at the low juvenile criminal and …