Law Commons^™

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 …

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 …

"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 …

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.

End The Moratorium: The Timor Gap Treaty As A Model For The Complete Resolution Of The Western Gap In The Gulf Of Mexico, John Holmes

Vanderbilt Journal of Transnational Law

The United States and Mexico recently entered into a treaty to delimit the continental shelf in the Gulf of Mexico, allowing both countries access to explore and exploit valuable natural resources in the Western Gulf. Included in the treaty is a ten-year moratorium on oil production within a buffer zone that encompasses transboundary reserves.

This Note explores the issues surrounding the buffer zone and suggests a model to resolve the dispute over access to transboundary reserves that will benefit both the United States and Mexico. Part 11 describes the relevant international law governing the Gulf of Mexico. Part III outlines …

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 …

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 …

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.

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 …

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, …

The Prosecution Of Rape Under International Law: Justice That Is Long Overdue, James R. Mchenry, Iii

Vanderbilt Journal of Transnational Law

This Note argues that despite theoretical criticisms, the prosecution of rape and sexual enslavement as crimes against humanity, by the International Criminal Tribunal for the former Yugoslavia (ICTY) fits within a larger, emerging picture of international legal jurisprudence. First, the ICTY built upon both its own prior decisions and the decisions of the International Criminal Tribunal for Rwanda (ICTR), especially Prosecutor v. Akayesu, in order to close gaps in the international legal conceptualizations of rape and enslavement, torture, war crimes, genocide and crimes against humanity. Second, building upon the example set by the ICTR, the ICTY broadened international protections of …

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 …

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 …

The Anti-Ballistic Missile Treaty Debate: Time For Some Clarification Of The President's Authority To Terminate A Treaty, Joshua P. O'Donnell

Vanderbilt Journal of Transnational Law

This Note explores the legal issues surrounding a president's legal authority to unilaterally withdraw from a treaty. This Note argues that, while international legal issues surrounding treaty termination are not controversial, the domestic legal issues surrounding the president's authority to terminate a treaty are heavily disputed. An analysis of these domestic legal issues does not resolve the controversy. Instead, this Note argues that a functional analysis is required. This functional analysis reveals that the president should have the power to unilaterally terminate a treaty because it maintains foreign policy effectiveness. The Note then argues that the Senate, which informally recognizes …

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 …

Health Versus Trade: The Future Of The Who's Framework Convention On Tobacco Control, Alyssa Woo

Vanderbilt Journal of Transnational Law

On October 16, 2000, the World Health Organization (WHO) began the first session of negotiations of its first international health treaty, the Framework Convention on Tobacco Control (FCTC). Scheduled for adoption in May 2003, the FCTC is a comprehensive multilateral treaty that will cover everything from tobacco smuggling to tobacco advertising and the extent of the liability of tobacco companies.

This Note argues that even-handed domestic measures implementing the FCTC will be protected from international, trade-based complaints because the World Trade Organization's dispute settlement system has given sufficient and appropriate content to the health exception to the normal trade rules …

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 …

Chinese Business And The Internet: The Infrastructure For Trust, Timothy L. Fort, Liu Junhai

Vanderbilt Journal of Transnational Law

Although the Internet and E-commerce revolutions have clearly taken hold in the United States and Europe, the Chinese culture has been slow to adopt the Internet as a marketplace. The Authors cite a lack of trust on the part of both potential consumers and potential merchants as the primary obstacle to a robust Chinese E-commerce community. To remedy this lack of trust, the Article proposes the nation seek a middle way between reforms guided by Western rule of law and Eastern rule of ethics, thus incorporating effective regulatory strategies and the philosophical resources already within the Chinese cultural consciousness. The …

Judicial Restraints On Illegal State Violence: Israel And The United States, John T. Parry

Vanderbilt Journal of Transnational Law

This Article examines the role of courts in controlling state violence in the United States and Israel. The Author considers how U.S. federal courts should respond to illegal state violence by comparing a U.S. Supreme Court case, "City of Los Angeles v. Lyons", with a case decided by the Supreme Court of Israel, Public Committee Against Torture in Israel v. Israel. Part II highlights the legal issues that were central to each court in reaching a decision, including standing, the scope of equitable discretion to craft remedies, and baseline attitudes towards illegal government action. Part III examines the doctrines discussed …

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 …

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 …

Contract Law, Andrew Phang

Research Collection Yong Pung How School Of Law

As expected, the number of Singapore cases during the year under review impacting the law of contract is enormous. As I have mentioned in previous reviews, this is due to the fact that the law of contract permeates virtually all areas of the law of obligations – and, on occasion, beyond as well. I will therefore adopt the approach which has been adopted during previous years: which is to focus, in the main, on general principles. There have – as we shall see – been a few cases that are of especial significance. Not surprisingly, given the fact that the …

Economic Rationality, Empathy, And Corporate Responsibility, Jeanne L. Schroeder

Articles

Judge Richard A. Posner - the doyen of the law and economics movement - is probably the leading proponent of the hypothesis that legal subjects act as if they were economically rational. Over the years, however, Posner's conception of rationality has devolved from end-means reasoning by a conscious individual human actor, to unconscious instinct which is, nevertheless, beneficial to an individual subject (animal or human) to the mechanistic reproductive activity of individual genes which may or may not be beneficial to either the organism of which the gene is a part - or even to the gene itself. Indeed, all …

Introduction, Joel K. Goldstein

All Faculty Scholarship

This issue of the Saint Louis University Law Journal traces, in some sense, to two events that occurred a quarter century ago. On February 6, 1977, Richard J. Childress, professor and former dean, of Saint Louis University School of Law died at the age of fifty-five. Barely seventeen days earlier, President Jimmy Carter had pledged an “absolute” commitment to human rights in his inaugural address and called for “international policies which reflect our own most precious values.”[1] Later that spring, President Carter called for “a new American foreign policy—a policy based on constant decency in its values and on optimism …

Searching For Commercial Reasonableness Under The Revised Article 9, Michael Korybut

All Faculty Scholarship

Under U.C.C. Article 9, a secured party selling repossessed collateral must conduct a commercially reasonable sale. Under the old Article 9, courts and commentators debated the question of whether the foreclosure sale process and its procedural regularity should measure the sale's commercial reasonableness or whether instead the main focus of inquiry should be the reasonableness of the proceeds produced by the sale. This question spawned conflicting and non-uniform judicial approaches, most simply described as the "procedures test" versus "proceeds test."

In 2001 Article 9 was revised. The revisions included changes that addressed, but did not explicitly resolve, the question of …

The Jury's Role In Administering Justice In The U.S. Introduction To Saint Louis Public Law Review Jury Issue, Stephen C. Thaman

All Faculty Scholarship

This introduction to the special jury issue of Saint Louis University’s Public Law Review briefly discusses the Conference “Lay Participation in the Criminal Trial in the Twenty-First Century,” in which all of the contributors to this issue participated. The conference took place at the International Institute for Higher Studies in the Criminal Sciences in Siracusa, Italy from May 25-29, 1999. It also discusses select papers and perspectives on the American jury system published in this issue of the journal.

Latin America's First Modern System Of Lay Participation: The Reform Of Inquisitorial Justice In Venezuela, Stephen C. Thaman

All Faculty Scholarship

This article describes the new Venezuelan jury and mixed court systems that were introduced by Codigo Organico Procesal Penal in 1998, in the context of the code’s radical transition to accusatorial and adversarial procedure.