Law Commons^™

Haste Makes Waste: Congress And The Common Law In Cyberspace, Suzanna Sherry

Vanderbilt Law Review

Speed is an asset in computer technology, but not necessarily in law. The new technologies of the twentieth and twenty-first centuries have inevitably raised new legal questions; all too often, the response to these new legal challenges is a hastily enacted federal statute. If the Internet allows children access to pornography, we enact the Communications Decency Act ("CDA"). Commercial concerns about cyber-authenticity prompt the Electronic Signatures in Global and National Commerce Act ("E-SIGN"). Are cybersquatters creating domain name problems? We've got a law for that, too. These are just a few of the quick fixes driven by a perceived need …

Perceived Disabilities, Social Cognition, And "Innocent Mistakes", Michelle A. Travis

Vanderbilt Law Review

Employment discrimination takes many more forms than the current models in our antidiscrimination laws explicitly recognize. As new forms of employment discrimination are identified, courts must decide whether or not to apply our existing statutes, which many continue to believe were narrowly constructed to focus primarily on conscious acts of prejudice. Litigants have had more success challenging that notion with respect to Title I of the Americans with Disabilities Act of 1990 (the "ADA"), because Congress was relatively clearer about the multifaceted nature of disability discrimination. Legislators openly acknowledged that disability discrimination may result not only from invidious animus, but …

Law On The Rocks: The Intoxication Defenses Are Being Eighty-Sixed, Meghan P. Ingle

Vanderbilt Law Review

The ever-controversial voluntary intoxication defense faces possible elimination by statutory abrogation. Originally developed by nineteenth-century common law courts, the defense recognizes that an intoxicated defendant may be incapable of possessing the mens rea specified by an offense. Increasingly criticized in recent years, the defense received a substantial blow to its continued vitality in the 1996 Supreme Court decision Montana v. Egelhoff. In a sharply divided opinion," a plurality of the Court held that a defendant does not possess a constitutional right to present evidence of voluntary intoxication in his defense. The Egelhoff decision has caused much commentary, both positive and …

Shortcomings In U.S. Federal Tax Regulatory Regime Of Private Foundations: Insights For Australia, Nina J. Crimm

Vanderbilt Journal of Transnational Law

This Article addresses the need for a more comprehensive regulatory scheme of Australia's nonprofit organizations, particularly its private foundation type structures. By considering the strengths, and more importantly, the weaknesses of the U.S. tax regime of private foundations, Australia can avoid pitfalls that accompany the development of Australia's laws and regulations. The Article begins by exploring the history, nature, and culture of Australia's nonprofit sector. After outlining the structure of the sector, the Article focuses on the potential for abuses if prescribed private funds are not given appropriate attention to avoid such abuses. Then, the Author details the U.S. nonprofit …

Persuasion And Resistance: The Use Of Psychology By Anglo-American Corporate Governance Advocates In France, James A. Fanto

Vanderbilt Journal of Transnational Law

The Author argues that in the 1990s Anglo-American corporate governance became the dominant model for large, public firms in the international business world, and that corporate governance professionals relentlessly promoted and exported Anglo-American corporate governance throughout the developed and developing world. Contending that it is an appropriate time--if only because the U.S. recession and international hostilities have tempered the "irrational exuberance" of capital market proponents--to examine critically the advocacy of Anglo-American corporate governance, the Author proposes that an important part of the critical assessment is to explain the momentum of the dominant model: to understand why Anglo-American corporate governance appeared …

The African Holocaust: Should Europe Pay Reparations To Africa For Colonialism And Slavery?, Ryan M. Spitzer

Vanderbilt Journal of Transnational Law

For many people of European descent, slavery is little more than an unpleasant memory of a bygone and distant era, largely remembered more for the glory of empires lost and faded dreams of conquest and exploration. For many Africans and African Americans, however, slavery remains an unhealed wound that is frequently, if not constantly, reopened by feelings of continued oppression, manipulation, and discrimination. These disparate views clashed most recently at the U.N. World Conference Against Racism, held in Durban, South Africa in September of 2001.

Inspired by the U.N. Conference in Durban, this Note analyzes the potential for reparations between …

Time For A New Approach? Federalism And Foreign Affairs After "Crosby V. National Foreign Trade Council", James J. Pascoe

Vanderbilt Journal of Transnational Law

On June 19, 2000, in Crosby v. National Foreign Trade Council--a much-anticipated decision involving the intersection of federalism and foreign relations--the U.S. Supreme Court struck down a Massachusetts law restricting state purchases from companies doing business in Burma. Crosby represents the Court's first consideration not only of local selective purchasing laws but, more importantly, its first consideration of the sort of subnational sanctions first developed by state and local governments during the anti-apartheid campaign of the 1980's. Thus, Crosby may pose an obstacle to human rights activism by local governments using economic sanctions to punish perceived human-rights offenders.

Because the …

Whistleblowing, Mncs, And Peace, Terry M. Dworkin

Vanderbilt Journal of Transnational Law

This Article examines the relationship among whistleblowing, corporations, and international peace. The Author attempts to establish that whistleblowing is a vital part of transparency and good government. In Part II, the Author examines the rationale for whistleblowing. Part III addresses the cultural dimensions of whistleblowing and its practicability for global organizations. Finally, the Author looks at the advantages of whistleblowing in relation to both corporations and peace efforts.

War And The Business Corporation, Eric W. Orts

Vanderbilt Journal of Transnational Law

This Article addresses the relationship between modern warfare and business corporations. The Article begins by considering the nature of war, emphasizing the effects of globalization and the changing importance of national boundaries. The Article reviews leading theories of war and focuses on how the growth of multinational corporations in economic and political power has begun to rival the power of nation-states. Next, the Article addresses the nature of the business corporation in the context of modern war by surveying standard legal, ethical, and economic understandings of corporate governance. The Article concludes by arguing that the recognition of the moral and …

Unratified Treaties And Other Unperfected Acts In International Law: Constitutional Functions, W. Michael Reisman

Vanderbilt Journal of Transnational Law

In international law's sociology of knowledge, unperfected legal acts are routinely examined and assigned some legal valence. Scholars quite properly use such material to assess incipient changes, and treatise and monograph writers are expected to determine whether some unperfected legal material is, or is in the process of becoming, customary international law. This is a perfectly proper use of unperfected legal material, because one of the functions of the scholar is to anticipate trends and to appraise incipient developments in terms of the impacts they may have on the most important goals of the international system. The most acute problem …

Glittery Promise Vs. Dismal Reality: The Role Of A Criminal Lawyer In The People's Republic Of China After The 1996 Revision Of The Criminal Procedure Law, Ping Yu

Vanderbilt Journal of Transnational Law

In this Article, the Author examines the recent revisions to the Chinese Criminal Procedure Law. The Author maintains that while the revisions were intended to promote a more equitable criminal justice system, the political climate in fact has rendered the revisions a step down for both defense attorneys and defendants. The Author analyzes different aspects of the revised law in order to support this point. In his conclusion, the Author suggests some changes to the criminal procedure law that may help to bring the Chinese defense system up to international standards.

Public Private Partnerships: The Role Of The Private Sector In Preventing Funding Conflict, Juliette Bennett

Vanderbilt Journal of Transnational Law

As the events in New York City in September have shown all of us, it is important that there be an increased understanding among all sectors of society on the ways that the global economy can increase the risk of violence in the world and an examination of ways to avoid or diminish those risks of violence. A significant contributor to these risks is the perception among many that they do not benefit from the global economy, that they are exploited by it, and that global business--and symbols of global business, such as the World Trade Towers--are legitimate targets of …

Human Rights Responsibilities Of Private Corporations, Jordan J. Paust

Vanderbilt Journal of Transnational Law

This Article discusses the human rights responsibilities of private corporations. Part I addresses how decisions and activities of multinational corporations impact human rights. Part II examines corporate liability under human rights laws by examining trends in judicial decisions in the United States and foreign states and human rights instruments. Part III explores the types of human rights deprivations that multinational corporations might cause. The Article concludes by predicting that there will be increasing scrutiny of corporate deprivations of human rights at the domestic, regional, and international levels.

Japan's Communications Interception Act: Unconstitutional Invasion Of Privacy Or Necessary Tool?, Lillian R. Gilmer

Vanderbilt Journal of Transnational Law

In August 1999, Japan became the last of the G8 nations to pass legislation to allow law enforcement to wiretap communications. For some, passage of the law was long overdue; for others, its passage marked the beginning of an impermissible government encroachment on civil rights. This Note examines Japan's Communications Interception Act, the forces in Japanese society creating the need for the law, and the reasons why the law is being challenged. Part II examines the policy behind the law, its history, and public reaction to the law. Part III presents the history of organized crime in Japan, and a …

"Super Jumbo" Problem: Boeing, Airbus, And The Battle For The Geopolitical Future, Daniel L. Fisher

Vanderbilt Journal of Transnational Law

The commercial aircraft industry is important to the United States for both economic and political reasons. Economically, commercial aviation has been the linchpin of the military-industrial complex and a positive actor on many other segments of U.S. industry. Politically, Boeing has ensured the lead of the United States in the aviation industry and aviation exports, which have a beneficial effect on the ability of the United States to export geopolitical power.

Cognizant of this salutary effect of a successful aviation industry on the United States, Europe created and financed Airbus as a direct competitor to Boeing, hoping it would play …

International Bounty Hunter Ride-Along, Ryan M. Porcello

Vanderbilt Journal of Transnational Law

This Note explores the international implications of a plan proposed by two bounty hunters in the Tacoma, Washington area to charge U.K. thrill seekers to accompany them on manhunts in the United States. Part H explains the differences in Colonial American society that resulted in the early development of a commercial bail bond system to replace the English personal surety system. Part III examines the contractual relationship between a bail bondsman and a defendant, as well as the agency relationship between a bail bondsman and a bounty hunter, to show why bounty hunters have such unbridled power to arrest fugitives. …

Global Antitrust And The Evolution Of An International Standard, William Sugden

Vanderbilt Journal of Transnational Law

This Note explores recommendations for developing a global antitrust regime and ultimately rejects those suggestions in favor of more traditional nationally-based applications of antitrust rules. Part II introduces an economic model of global antitrust to show the systemic difficulties inherent in creating a global regime. Part III contrasts the difficulties in creating a global regime with the greater historical success of developing regional antitrust authorities. Part IV tracks the history of the extraterritorial application of antitrust laws by the United States and the European Union. Part V argues that the path to effective global antitrust lies not in the creation …

World Conference Against Racism: New Avenues For Slavery Reparations?, Michelle E. Lyons

Vanderbilt Journal of Transnational Law

The reparations movement has had a long and tumultuous history, as past attempts to obtain equitable relief have failed through common law, international law, legislation, and constitutional law. However, recent developments in these areas have pushed the reparations movement to the forefront. For example, Farmer-Paellmann v. Fleetboston Financial Corp. and similar 'suits have renewed the common law claim for reparations by identifying corporations that have kept record of their involvement in slavery and naming the corporations as concrete defendants. By naming corporate defendants, as compared to governmental or individual defendants, the suits have eliminated an enormous weakness in past efforts, …

Avoiding A Nuclear Trade War: Strategies For Retaining Tax Incentives For U.S. Corporations In A Post-Fsc World, Carrie A. Von Hoff

Vanderbilt Journal of Transnational Law

On January 14, 2002, the World Trade Organization (WTO) Appellate Body affirmed that the FSC Repeal and Extraterritorial Income (ETI) Exclusion Act, a replacement for the Foreign Sales Corporation (FSC) Act, was an unlawful export subsidy under WTO agreements. Though the European Union has indicated a willingness to wait before imposing the largest trade sanctions in the history of the WTO, it insists that the United States comply with the ruling. This Note explores the history of the conflict and considers possibilities for the future of international trade taxation.

This Note first examines the background to the conflict, beginning with …

Foreign Relations And Federal Questions: Resolving The Judicial Split On Federal Court Jurisdiction, Erin E. Terrell

Vanderbilt Journal of Transnational Law

The federal circuit courts have disagreed concerning a fundamental issue of federal court jurisdiction: whether cases that may implicate or involve the "foreign relations" of the United States, but do not otherwise raise a more traditional "federal question" under federal law, may be removed from state courts to federal courts. This Note examines the cases that have created the split, and proposes two potential resolutions to it, one judicial and the other legislative.

Spontaneous Tax Coordination: On Adopting A Comparative Approach To Reforming The U.S. International Tax Regime, Anthony C. Infanti

Vanderbilt Journal of Transnational Law

The excessive complexity of the U.S. international tax regime is well documented. Although many commentators have cited the need for simplification, their proposals often maximize other policy goals at the expense of simplicity. Even reform proposals aimed principally at clarifying the tax code are ordinarily focused on the "internal" complexity of the code, seeking improvements only for U.S. taxpayers struggling with a single complex provision of the code or the baffling interaction, of two U.S. rules. This Article focuses on the interaction between U.S. tax law and the rules of other nations, and is intended to illustrate the benefits that …

The Evolution Of Iranian Islamism From The Revolution Through The Contemporary Reformers, Jeffrey Usman

Vanderbilt Journal of Transnational Law

This Note explores the evolution and maturation of Iranian Islamism from the revolutionary elites through the contemporary reformers of the 21st century. The Author examines the conflicting ideological influences that are shaping the Islamist movement in Iran. This Note begins by presenting the framework of the fundamental contradictions that underlie Iranian Islamist ideology. The analysis of the Iranian Constitution is divided into an exploration of the institutional role of the clerical elites in the form of the faqih and the Council of Guardians, the constitutionally defined role of women, the democratic elements in the Iranian Constitution, and Marxism and environmentalism …

Corrections To Laurel S. Terry, Gats' Applicability To Transnational Lawyering, Laurel S. Terry

Vanderbilt Journal of Transnational Law

In October 2001, the Vanderbilt Journal of Transnational Law published an article I wrote entitled GATS' Applicability to Transnational Lawyering and its Potential Impact on U.S. State Regulation of Lawyers, 34 Vand. J. Transnat'l L. 989 (2001). (This article was part of an April 2001 Symposium on Lawyer Ethics in the 21st Century: Global Legal Practice.) After my article was published, I came to discover several mistakes in it. The pages that follow are my corrections to that October 2001 article. I am very grateful to the editors of the Vanderbilt Journal of Transnational Law for the opportunity to publish …

Foreign Sales Corporations--Subsidies, Sanctions, And Trade Wars, Candace Carmichael

Vanderbilt Journal of Transnational Law

The largest sanctions in the history of the World Trade Organization, the need to stabilize an ailing economy, and the need to maintain strong alliances in the face of a new global war on terrorism are all issues the United States currently faces in deciding how to resolve its dispute with the European Union regarding U.S. tax policy. In 1997, the European Union filed a complaint with the WTO claiming that the then-current U.S. tax regime violated U.S. international trade agreements. The European Union contended that the U.S. tax system gave rise to export-contingent subsidies, in violation of U.S. trade …

Conceptions Of The Corporation And The Prospects Of Sustainable Peace, Jeffrey Nesteruk

Vanderbilt Journal of Transnational Law

This Article examines the role of corporate law in promoting sustainable peace. The Author argues that corporate legal theory can make a distinctive contribution to a more peaceful world by exposing some deeper roots of corporate law doctrines. Beginning with a brief overview of the corporation in legal discourse, the Article addresses the corporation as property, person, contract, and community. Next, the Article explores the significance of legal language, detailing the ways the law, through language, constructs and impacts the "character," "culture," and "community" of society. The Article then analyzes the dominance that the property and contract conceptions of the …

Corporate Governance And The Global Social Void, Lee A. Tavis

Vanderbilt Journal of Transnational Law

This Article argues that the components of globalization--economic integration, democratization, and global governance networks--are changing the nature of corporate governance and the prospects for peace. Multinational enterprises are the instruments of economic integration. As such, multinationals as a group deserve credit for the positive productivity-related wealth effects of the process. As the implementing institutions, these enterprises are also inextricably related to the inequality--the social void--resulting from globalization that threatens peace.

Hyper competition in the global product markets and the demands of the financial markets determine, to a large extent, the activities of the multinational. Alternatively, there is an evolving opportunity …

Terrorism And Globalization: An International Perspective, Linda Lim

Vanderbilt Journal of Transnational Law

Terrorism has little or nothing to do with globalization, just as it has little or nothing to do with Islam. Most of the many varieties of terrorism that afflict and have long afflicted the world are responses not to global phenomena, but to intensely local ones. Examples include particularly ethnic, nationalist, and religious fault lines such as violence by Catholics and Protestants in Ireland; Basques in Spain; the Hindu Tamil Tigers in Sri Lanka; Kashmiris, Sikhs, and Hindu nationalists in India; the Aum cult in Japan; and Uighurs in Xinjiang, China.

The terrorists who attacked the World Trade Center on …

Table Talk: Around The Table Of The Appellate Body Of The World Trade Organization, James Bacchus

Vanderbilt Journal of Transnational Law

In this Article, James Bacchus describes his experiences as a "faceless foreign judge" of the World Trade Organization. In this capacity, Bacchus and his six colleagues on the WTO Appellate Body hear appeals in international trade disputes among the 144 member countries and other customs territories that are Members of the WTO. Bound by the WTO Rules of Conduct, he cannot comment on cases or the specific deliberation process, but rather comments on the processes and role of the Appellate Body relative to the WTO.

The United States Dropped The Atomic Bomb Of Article 16 Of The Icc Statute, Mohamed E. Zeidy

Vanderbilt Journal of Transnational Law

This Article discusses the recent adoption of the Security Council Resolution 1422 and its impact on international law. The Author asserts that the United States--a major proponent of Resolution 1422--desires to immunize its leaders and soldiers from the International Criminal Court's jurisdictional powers. The Author begins by describing the drafting history of Article 16 and its legal consequences. Upon highlighting the most significant reasons for opposing Resolution 1422, the Author delineates how the Resolution mirrors the inconsistency with the United Nations Charter and the Law of Treaties. Finally, the Author concludes that Resolution 1422 should be rejected because it violates …

In Vindication Of Justiciable Victims' Rights To Truth And Justice For State-Sponsored Crimes, Raquel Aldana-Pindell

Vanderbilt Journal of Transnational Law

In this Article, Professor Aldana-Pindell explores the norms establishing a state's responsibility to grant victims of human rights violations adequate rights in the criminal prosecution process as a remedy for their victimization. She argues that victim-focused prosecution norms comport and provide more effective means of promoting respect for human rights, in certain nations in democratic transition from mass atrocities. Moreover, she suggests that, as part of other justice reforms, states plagued with impunity should adopt criminal procedures granting surviving human rights victims greater standing in the prosecution process. Professor Aldana-Pindell then uses Guatemala to examine the factors that compel the …