Law Commons^™

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.

When Voluntary, Incentive-Based Controls Fail: Structuring A Regulatory Response To Agricultural Nonpoint Source Water Pollution, Douglas R. Williams

All Faculty Scholarship

This article is part of the Symposium, Sustainable Agriculture: Food for the Future. Recognizing that, to date, farms had largely escaped regulation under the Clean Water Act, and that agricultural nonpoint source pollution is a leading contributor to impaired water quality, this article advocates for a regulatory response to such pollution. It considers existing programs to control nonpoint source pollution and demonstrates that they are inadequate. The article makes three recommendations: (1) an increased federal regulatory presence is needed; (2) the costs of implementing nonpoint source controls should be distributed in a pragmatic way that recognizes the extraordinary organizational presence …

Disability, Doctors And Dollars: Distinguishing The Three Faces Of Reasonable Accommodation, Elizabeth Pendo

All Faculty Scholarship

Despite a decade of litigation, there is no consistent understanding of the reasonable accommodation requirement of Title I of the Americans with Disabilities Act of 1990 (the 'ADA'). Indeed, there are three inconsistent distributive outcomes that appear to comport with the reasonable accommodation requirement: cost-shifting, cost-sharing, and cost-avoidance.

One reason for such inconsistent outcomes is a failure to develop a coherent and consistent theory of disability. Because disability has been and continues to be medicalized, this Article takes a fresh look at the medical literature on health, illness, and disability. It recommends the use of the experiential health model over …

Director Communications And The Uneasy Relationship Between The Fiduciary Duty Of Disclosure And The Anti-Fraud Provisions Of The Federal Securities Laws, Jennifer O'Hare

Faculty Publications

No abstract provided.

How Extra-Copyright Protection Of Databases Can Be Constitutional, Justin Hughes

Articles

Following the Supreme Court's 1991 Feist decision, intellectual property and Constitutional law scholars have debated whether extra-copyright protection of databases can be established by Congress under its Commerce Clause power. This article presents the problem as one of the gravitational zone of the Commerce Clause versus that of the Copyright and Patent Clause. The article reasons that the Supreme Court decisions in International News Service v. Associated Press, Zacchini v. Scripps-Howard, and the 19th century Trademark Cases all point to the possibility of limited protection of databases under the Commerce Clause. The Article also considers the constitutionality of extra-copyright protection …

Surcharge And Standing: Bankruptcy Code Section 506(C) After Hartford Underwriters, David G. Carlson

Articles

The Supreme Court's decision in Hartford Underwriters Insurance Co. v. Union Planters Bank, N.A., which limited standing under 11 U.S.C. § 506(c) to bankruptcy trustees, fails to conclusively resolve the issue of who can bring such claims. The ruling creates legal complexities, as it does not fully address ownership of the proceeds or provide clear guidance, leading to potential workarounds by secured creditors and trustees. The article argues that the decision may be circumvented, and the current framework for handling § 506(c) claims remains unsatisfactory, necessitating further legislative or judicial clarification.

Intergroup Rivalry, Anti-Competitive Conduct And Affirmative Action, Michelle Adams

Articles

Significant research in social science describes racial inequality as grounded in notions of group identity and group conflict. Sociologists and social psychologists who study discrimination and prejudice have moved away from theories that explain prejudice solely as a problem of individual perception, and toward theories that view individual cognitive processes as related to group membership. While present social science yields no consensus view, there is a striking emphasis in the current literature on group identity theories as "powerful determinants of behavior." These theories, which stress the importance of prejudice as a group-based phenomenon and focus on "social-structural theories of group …

Why A Board? Group Decisionmaking In Corporate Governance, Stephen M. Bainbridge

Vanderbilt Law Review

This Article begins by briefly describing the role of the board both in law and in practice. Part II explores the distinction be- tween consensus and authority as modes of institutional decision- making. As hierarchical institutions, corporations rely far more heavily on authority than on consensus. Yet, at the apex of the hierarchy is a collegial body that functions mainly by consensus.

Part III is the core of the Article. In order to evaluate corporate law's preference for collective decisionmaking, we need to know whether group decisionmaking is superior to that of individuals. A wealth of experimental data suggests that …

Citation And Representation, Alex Glashausser

Vanderbilt Law Review

A war is raging in the legal citation field. Arbitrary changes in the Bluebook from one edition to the next have incited a populist rebellion in the form of the Association of Legal Writing Directors' ALWD Citation Manual. This Article traces the causes of the conflict and assesses its likely outcomes. Professor Glashausser compares the two citation guides to eighteenth- century Great Britain and America: the Bluebook is the elite empire clinging to its position, and the Manual is the challenger hoping to ride a wave of populism to revolution. Overall, Professor Glashausser's Article sides with the Manual as the …