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Full-Text Articles in Law
Le Droit Et Les Reseaux Internationaux D'Information, Joel R. Reidenberg
Le Droit Et Les Reseaux Internationaux D'Information, Joel R. Reidenberg
Faculty Scholarship
Travaux pour obtenir le grade de Docteur De L'Universite Paris I. Discipline: Droit. Sujet des publications: Le Droit Et Les Reseaux Internationaux D'Information
Introduction, Mohammad H. Fadel
Introduction, Mohammad H. Fadel
Fordham International Law Journal
Fordham International Law Journal's special issue on Islamic law includes articles that present a broad variety of themes, from the historical to the contemporary, from the philosophical to the empirical, and from the theoretical to the practical. In light of the generally poor understanding of Islamic law among American lawyers, one can only hope that a publication such as this succeeds in generating greater intellectual curiosity about Islamic law among readers of American law journals. The authors hope that this collection of Articles will lead to renewed interest in Islamic law and theology as intellectually gratifying topics of inquiry in …
On Democracy As A Shar'i Moral Presumption: Response To Khaled Abou El Fadl, Anver M. Emon
On Democracy As A Shar'i Moral Presumption: Response To Khaled Abou El Fadl, Anver M. Emon
Fordham International Law Journal
Khaled Abou El Fadl has done more in his Article than simply argue the possibility of democracy in the Muslim world. He reminds us that Islam is not a monolithic idea lacking varying contours, possibilities, and dispositions. Whether in talking about an Islamic legal system or an Islamic political system, the most frequent mistake is assuming that there is an ideal vision of such systems that precludes debate, difference, and the continued search for possibilities. Another common mistake is to presume that the limits of an “Islamic political system” are inherent in the existing practice of so-called Muslim States. To …
Islam And The Challenge Of Democratic Commitment, Dr. Khaled Abou El-Fadl
Islam And The Challenge Of Democratic Commitment, Dr. Khaled Abou El-Fadl
Fordham International Law Journal
The author questions whether concurrent and simultaneous moral and normative commitments to Islam and to a democratic form of government are reconcilable or mutually exclusive. The author will argue in this Article that it is indeed possible to reconcile Islam with a commitment in favor of democracy. The author will then present a systematic exploration of Islamic theology and law as it relates to a democratic system of government, and in this context, address the various elements within Islamic belief and practice that promote, challenge, or hinder the emergence of an ideological commitment in favor of democracy. In many ways, …
"Interest" And The Paradox Of Contemporary Islamic Law And Finance, Mahmoud A. El-Gamal
"Interest" And The Paradox Of Contemporary Islamic Law And Finance, Mahmoud A. El-Gamal
Fordham International Law Journal
In Sections 1 and 2, the article shall provide a brief introduction to various notions of Islamic law as they exist today, as well as the common-law nature of Islamic jurisprudence to establish the possibility of finding a compromise that renders minor modifications of the existing juristic positions coherent. In Sections 3 and 4, the article will provide translations of the entire Azhar Islamic Research Institute (IRI) fatwa, and large excerpts from the Council of the Islamic Jurisprudence Academy's (IJA) rebuttal together with discussions of the juristic backgrounds of each opinion. In Section 5, the author will discuss the ideological …
Judicial Activism Of The Shari'ah Appeals Court In Israel (1994 - 2001): Rise And Crisis, Dr. Moussa Abou Ramadan
Judicial Activism Of The Shari'ah Appeals Court In Israel (1994 - 2001): Rise And Crisis, Dr. Moussa Abou Ramadan
Fordham International Law Journal
The main thesis of this Article is that after 1994, with the nomination of new qadis to the Shari‘ah Court, a process of judicial activism began, which continues until this day. This process has been characterized by the qadis' attempts to strengthen the position of the Shari‘ah Appeals Court. In some fields the qadis' activism has been more successful than in others. Recently however, it seems that the Shari‘ah system is undergoing a crisis. The author will analyze the actions of the Shari‘ah Appeals Court on several parallel levels: (1) the strengthening of its position compared with those of the …
The European Union In Transition: The Treaty Of Nice In Effect; Enlargement In Sight; A Constitution In Doubt, Roger J. Goebel
The European Union In Transition: The Treaty Of Nice In Effect; Enlargement In Sight; A Constitution In Doubt, Roger J. Goebel
Fordham International Law Journal
This Article is intended to provide an overview of this transitional moment in the history of the European Union. Initially, the Article will briefly review the background of the Treaty of Nice, and the institutional structure modifications for which it provides, which paves the way for enlargement. Next it will describe the final stages of the enlargement process. Finally, the Article will set out the principal institutional innovations and certain other key aspects of the draft Constitution, the most important issues concerning them, and the current impasse.
Introducing Eu Competition Law And Policy In Central And Eastern Europe: Requirements In Theory And Problems In Practice, Frank Emmert
Introducing Eu Competition Law And Policy In Central And Eastern Europe: Requirements In Theory And Problems In Practice, Frank Emmert
Fordham International Law Journal
This Article gives an overview of the requirements that must be fulfilled before a Central and Eastern European Country ("CEEC") can truly claim to be willing and able to apply the acquis communautaire in the field of competition law and policy and thus to be ready for full membership in the European Union ("EU").
Beyond The Charter: How Enlargement Has Enlarged The Human Rights Policy Of The European Union, Gráinne De Búrca
Beyond The Charter: How Enlargement Has Enlarged The Human Rights Policy Of The European Union, Gráinne De Búrca
Fordham International Law Journal
The contention of this Article, however, is that a number of other developments have taken place which--in mostly unanticipated ways--may lead to more significant change in the scope and shape of EU human rights policy than the Charter alone. In particular, two developments have combined in recent years to open the way for a more general and comprehensive human rights policy which, while less concerned with the contentious competence and justiciability debates generated by the Charter, is already beginning to manifest itself in interesting ways. The first of these developments was the shaping of a more principled and graduated crisis …
Enlargement Of The European Union – The Discrepancy Between Membership Obligations And Accession Conditions As Regards The Protection Of Minorities, Christophe Hillion
Enlargement Of The European Union – The Discrepancy Between Membership Obligations And Accession Conditions As Regards The Protection Of Minorities, Christophe Hillion
Fordham International Law Journal
This Article will focus on one particular accession condition that is illustrative of this phenomenon, namely, the protection of minorities. The Copenhagen criteria encompass the "respect for and protection of minorities" as one of the conditions for acceding to the Union, but the Treaty on European Union ("TEU") does not explicitly mention the protection of minorities as one of the EU's principles, objectives, or competences. It is argued that the question of minority rights could find its way onto the EU internal policy agenda not only as a concern of various new Member States, but also as an unintended consequence …
Fundamental Facets Of The United States-Jordan Free Trade Agreement: E-Commerce, Dispute Resolution, And Beyond, Mohammad Nsour
Fundamental Facets Of The United States-Jordan Free Trade Agreement: E-Commerce, Dispute Resolution, And Beyond, Mohammad Nsour
Fordham International Law Journal
Part I of this Article discusses e-commerce in the U.S.-Jordan FTA. Part I begins with definitions of basic issues in the e-commerce regime, such as electronic signatures. Thereafter, Part I highlights the ways in which some of the important international regimes have dealt with e-commerce, as in the GATS. Finally, and most importantly, Part I will provide a legal analysis of issues related to e-commerce, which are mentioned in the U.S.-Jordan Joint Statement on E-Commerce, such as privacy. Due to the fact that the World Trade Organization's ("WTO") dispute settlement system is the dominant one for trade disputes, Part II …
Regulation Without Borders: The Impact Of Sarbanes-Oxley On European Companies, Maria Camilla Cardilli
Regulation Without Borders: The Impact Of Sarbanes-Oxley On European Companies, Maria Camilla Cardilli
Fordham International Law Journal
The purpose of this study is to: (i) outline the key provisions of Sarbanes-Oxley, highlighting the aspects of the Act which are most likely to impact European companies as well as their officers and directors; (ii) point out the provisions of the Act which conflict with EU national laws; and (iii) illustrate the key points of the proposed European reform of corporate governance, as formulated on November 4, 2002 by the High Level Group of Company Law Experts appointed by the European Commission.
Law "Of Our Own Style": The Evolution And Challenges Of The North Korean Legal System, Patricia Goedde
Law "Of Our Own Style": The Evolution And Challenges Of The North Korean Legal System, Patricia Goedde
Fordham International Law Journal
In this Essay, I first briefly present theoretical contexts that may aid in defining the North Korean legal system. Next, I trace the evolution of the North Korean legal system by examining the North Korean reaction to various legal influences of the Japanese occupation, Soviet tutelage, and traditional Korean practices, and outline the current politico-legal structure. In the final section, I inquire whether the North Korean legal structure can accommodate a different legal system necessitating rule-of-law requirements, as applied to its foreign investment regime and, perhaps some day, nationwide. Although the main purpose of this Essay is to introduce the …
The Sword In The Mirror – The Lawfulness Of North Korea's Use And Threat Of Use Of Nuclear Weapons Based On The United States' Legitimization Of Nuclear Weapons, Charles J. Moxley, Jr.
The Sword In The Mirror – The Lawfulness Of North Korea's Use And Threat Of Use Of Nuclear Weapons Based On The United States' Legitimization Of Nuclear Weapons, Charles J. Moxley, Jr.
Fordham International Law Journal
This Article addresses the lawfulness of the use or threat of use of nuclear weapons by the Democratic People's Republic of Korea ("North Korea" or "DPRK"). I address the topic from three perspectives: 1) North Korea's own statements of the matter; 2) U.S. statements of the law as applied to its own nuclear weapons; and 3) my evaluation of the matter based on international law as stated by the United States and as found by the International Court of Justice in the Nuclear Weapons Advisory Decision.
America's De Facto Guest Workers: Lessons From Germany's Gastarbeiter For U.S. Immigration Reform, Nicole Jacoby
America's De Facto Guest Workers: Lessons From Germany's Gastarbeiter For U.S. Immigration Reform, Nicole Jacoby
Fordham International Law Journal
Part I of this Note describes West Germany's post-war Gastarbeiter [guest worker] program from 1961 to 1972. Part II focuses on the long-term results of the Gastarbeiter program, with special emphasis on the legal status of Turkish Gastarbeiter in Germany. This assessment concludes that guest worker programs inevitably result in the permanent settlement of foreigners in the host country. If not properly anticipated and planned for, this settlement leads to social stratification and political divisiveness. Part II also presents for comparison U.S. immigration policies and their effect on Mexican immigrant workers. The section asserts that the United States over the …
The Caribbean Court Of Justice: Enhancing The Law Of International Organizations, Sheldon A. Mcdonald
The Caribbean Court Of Justice: Enhancing The Law Of International Organizations, Sheldon A. Mcdonald
Fordham International Law Journal
This Article will consider the following: Part I will discuss some general issues concerning dispute settlement internationally. Part II discuss dispute settlement systems in the Regional Economic Groupings, including the World Trade Organization ("WTO") (as evidenced in the infamous "Banana Dispute") and the future Free Trade Area of the Americas ("FTAA"), given that the Revised Treaty will be notified under article XXIV of the General Agreement on Trade and Tariffs 1994 and will presumably be accepted as being consistent with the understanding thereunder. Part III will examine the Role of the CCJ as the judicial organ of CARICOM and the …
Out Of The "Troubles" And Into Rights: Protection For Gays, Lesbians, And Bisexuals In Northern Ireland Through Equality Legislation In The Belfast Agreement, Mckenzie A. Livingston
Out Of The "Troubles" And Into Rights: Protection For Gays, Lesbians, And Bisexuals In Northern Ireland Through Equality Legislation In The Belfast Agreement, Mckenzie A. Livingston
Fordham International Law Journal
Part I of this Note explores the history of LGB rights in Northern Ireland, focusing on the development of domestic equality legislation stemming from the recent peace process. Part II examines the statutory framework of this legislation, concentrating on what protections and rights it provides for sexual minorities in Northern Ireland. Part II also looks at a recent European Directive prohibiting discrimination against LGB persons in employment. Part III argues that for truly effective change to occur, LGB individuals need both policy-based and rights-based legislation encompassing the human rights principles of equality and non-discrimination. Part III further argues that the …
Puerto Rico Pandemonium: The Commonwealth Constitution And The Compact-Colony Conundrum, Jason Adolfo Otaño
Puerto Rico Pandemonium: The Commonwealth Constitution And The Compact-Colony Conundrum, Jason Adolfo Otaño
Fordham International Law Journal
This Note will consider the historical background of the compact-colony conundrum and examine the development of self-determination in international law and democracy in the Americas in order to bring to light a new forum for this question. Part I will discuss the historical background necessary in examining this conflict. Part II analyzes the formation of a constitutional government in Puerto Rico, and the reaction of the international and Inter-American communities. Part III argues that Puerto Rico is still a colony of the United States and thus U.S.-P.R. relations violate international and Inter-American law.
No Recourse: Transnational Corporations And The Protection Of Economic, Social, And Cultural Rights In Bolivia , Maria Mcfarland Sánchez-Moreno, Tracy Higgins
No Recourse: Transnational Corporations And The Protection Of Economic, Social, And Cultural Rights In Bolivia , Maria Mcfarland Sánchez-Moreno, Tracy Higgins
Fordham International Law Journal
This Report analyzes two cases in which TNC activities have had an impact on Bolivian citizens' enjoyment of economic, social, and cultural rights (“ESC rights”). In so doing, it analyzes not only corporate conduct but also the Bolivian government's role in protecting ESC rights from violation. The cases involve an oil spill by Transredes, a TNC partly owned by Enron and Shell, in Bolivia's Desaguadero River, which affected over one hundred indigenous communities; and the water war that took place in the city of Cochabamba over the privatization of Cochabamba's water system and its operation by the consortium Aguas del …
Ludwik A. Teclaff (1918 – 2003) A Tribute, Joseph C. Sweeney
Ludwik A. Teclaff (1918 – 2003) A Tribute, Joseph C. Sweeney
Fordham International Law Journal
On May 29, 2003, Professor Ludwik A. Teclaff died in his 85th year at his retirement home in St. Petersburg, Florida. Ludwik Teclaff, was a scholar, a patriot, a warrior and a man of faith. He was born in Czestochowa, Poland on November 14, 1918, just before Poland emerged as a newly independent Nation. In 1959 Dr. Teclaff joined the Fordham University School of Law Library, becoming Librarian of the Law School in 1962. During his twenty-four years as Librarian, Dr. Teclaff made the changes in technology and administration that would put Fordham's law library in the front rank of …
Developments, Issues, And New Remedies – The Duties Of National Authorities And Courts Under Article 10 Of The Ec Treaty , John Temple Lang
Developments, Issues, And New Remedies – The Duties Of National Authorities And Courts Under Article 10 Of The Ec Treaty , John Temple Lang
Fordham International Law Journal
The Court of Justice is using Article 10 of the EC Treaty more frequently, in a wide variety of cases. This Article summarizes and comments briefly on more than forty cases which have been decided and issues which have arisen since the Congress of FIDE, the Fédération Internationale pour le Droit Européen, in Helsinki in 2000, where the case law on Article 10 was discussed at length. The Court is continuing to draw a variety of practical conclusions from the general words of the Article, elaborating and applying existing case-law, and ruling on both positive and negative duties resulting from …
The Obstacles To Regulating The Hawala: A Cultural Norm Or A Terrorist Hotbed? , Rachana Pathak
The Obstacles To Regulating The Hawala: A Cultural Norm Or A Terrorist Hotbed? , Rachana Pathak
Fordham International Law Journal
This Note examines the complex mechanics of hawala networks. Part I provides information regarding their origins, scope and reasons for continued existence. Part II contrasts the U.S. approach to regulating hawala networks through the USA PATRIOT Act and Operation Green Quest, with the U.A.E.'s approach, which is resistant to some of the American-led efforts. Part II also reviews three separate Green Quest actions: 1) Al Barakaat, an expansive Somalia-based organization through which Somalia's diaspora sent cash to families abroad; 2) Hussein Alshafei, an Iraqi American, who operated a money service business to Iraq; and 3) Mohammed Albanna, a Yemeni-American, based …
Vengeance And Empire: The Leftist Case For War In Iraq – William Shawcross, Allies: The U.S., Britain, Europe, And The War In Iraq , Hal Blanchard
Vengeance And Empire: The Leftist Case For War In Iraq – William Shawcross, Allies: The U.S., Britain, Europe, And The War In Iraq , Hal Blanchard
Fordham International Law Journal
Shawcross is superbly equipped to assess the impact of rogue States and terrorist organizations on global security. He is also well placed to comment on the risks of preemptive invasion for existing alliances and the future prospects for the international rule of law. An analysis of the ways in which the international community has “confronted evil,” Shawcross' brief polemic argues that U.S. President George Bush and British Prime Minister Tony Blair were right to go to war without UN clearance, and that the hypocrisy of Jacques Chirac was largely responsible for the collapse of international consensus over the war. His …
Confronting Misconceptions And Acknowledging Imperfections: A Response To Khaled Abou El Fadl's "Islam And Democracy", Erik G. Jensen
Confronting Misconceptions And Acknowledging Imperfections: A Response To Khaled Abou El Fadl's "Islam And Democracy", Erik G. Jensen
Fordham International Law Journal
Professor Abou El Fadl's Article, Islam and the Challenge of Democracy, demonstrates the need to move forward with knowledge of the nuance and depth of the historic, philosophic, legal, and theological foundations of both political stasis and political change in Muslim countries. The author comments on three aspects of Khaled Abou El Fadl's paper. First, the author will juxtapose the discourse that Professor Abou El Fadl is stimulating with other perspectives in order to delineate the sets of actors in this debate among Muslims. The author will also argue that “Islamic exceptionalism,” so prominent in post-modern critiques, is unhelpful. Second, …
Shari'ah, Democracy, And The Modern Nation-State: Some Reflections On Islam, Popular Rule, And Pluralism, Sherman A. Jackson
Shari'ah, Democracy, And The Modern Nation-State: Some Reflections On Islam, Popular Rule, And Pluralism, Sherman A. Jackson
Fordham International Law Journal
In this article, the author examines two considerations that are critical to a full and meaningful assessment of the degree to which Islam, and Islamic law in particular, can find authentic expressions of themselves under what may reasonably be considered a democratic form of government. The first of these has to do with the scope of Islamic law, or more properly, the scope of the interpretive authority of Muslim jurists, and whether a State that is governed by Shari‘ah must necessarily give priority to the views of religious scholars over those of all others in every aspect of life. Does …
An Islamic Perspective On Domestic Violence, Azizah Y. Al-Hibri
An Islamic Perspective On Domestic Violence, Azizah Y. Al-Hibri
Fordham International Law Journal
In this Article, the author addresses the traditional Islamic view of domestic violence. To understand the Islamic perspective on domestic violence, the author will explore the Islamic view of gender relations, especially within the family. This view is rooted in the Qur'an, which is examined in this Article.
Women In Shari'ah Courts: A Historical And Methodological Discussion, Amira Sonbol
Women In Shari'ah Courts: A Historical And Methodological Discussion, Amira Sonbol
Fordham International Law Journal
This Article focuses on qadis and courts before modern legal reforms with particular emphasis on the life of women and their interaction with the courts. A number of issues will be discussed and points made pertaining to the laws and madhahib [Islamic legal schools] applied in courts, the hierarchies and roles of qadis, and the accessibility of the legal system and knowledge of court procedures to the general public. Court culture, personnel, and record-keeping will also be discussed, as will the philosophy behind the law. The author hopes to illustrate that a viable court system existed before modernization. Although precedent …
Martyrdom, Suicide, And The Islamic Law Of War: A Short Legal History, Bernard K. Freamon
Martyrdom, Suicide, And The Islamic Law Of War: A Short Legal History, Bernard K. Freamon
Fordham International Law Journal
This Article is concerned with one key aspect of the law of the military jihad: the Islamic concept of martyrdom [shahada or istishhad]. This Article will demonstrate that the current Islamist financing and systematic organization and direction of self-annihilatory acts of violence is only weakly supported, if at all, by the classical sources on martyrdom in Islamic law and jurisprudence. The Article will show that current justifications for self-annihilatory violence are instead the result of a major reinterpretation of the theology and religious law on martyrdom and the military jihad advanced by Shi'ite theologians and jurists in Iraq and Iran …
Penumbras, Privacy, And The Death Of Morals-Based Legislation: Comparing U.S. Constitutional Law With The Inherent Right Of Privacy In Islamic Jurisprudence, Seema Saifee
Fordham International Law Journal
In an effort to separate the Islamic regulatory scheme with respect to the criminalization of consensual sexual conduct from the caricature espoused by many Western thinkers, this Note provides a comparative analysis of the criminalization of private consensual sexual conduct in Islamic law and U.S. constitutional jurisprudence on the right of privacy. Part I provides a brief background of Islamic and U.S. criminal regulations on consensual sex and outlines the evolution of constitutional privacy jurisprudence in the U.S. Supreme Court. Part II first examines the evidentiary and procedural requirements pertaining to the criminalization of consensual sexual intercourse in Islamic law, …
The Member States Of The European Union And Giscard's Blueprint For Its Future, Anthony Arnull
The Member States Of The European Union And Giscard's Blueprint For Its Future, Anthony Arnull
Fordham International Law Journal
The purpose of this Article is to consider the implications for the European Union's (“EU”) Member States of the Draft Union Constitution published in the summer of 2003. The Article begins by briefly describing the process which led to the production of the Draft Treaty and considers the formal status it would enjoy if adopted. The Article then focuses on provisions of the Draft Treaty which: 1. deal with its relationship with the domestic law of the Member States; 2. affect EU decision-making, particularly the functioning of institutions in which the Member States are directly represented at the political level …