Law Commons^™

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.

A Consumer's Dream Or Pandora's Box: Is Arbitration A Viable Option For Cross-Border Consumer Disputes?, Donna M. Bates

Fordham International Law Journal

This Note discusses current consumer arbitration policies and analyzes whether traditional arbitration is adequate to address consumer disputes in the new cross-border shopping environment. Part I discusses the importance of consumer protection and reviews the consumer arbitration regimes of the United States and the European Union. Part II discusses the criticisms of the current policies toward consumer arbitration in the United States and the European Union. Part II also highlights the unique problems of consumer dispute resolution in cross-border transactions and raises some concerns unique to dispute resolution on the Internet. Part III concludes that traditional arbitration systems are not …

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 Constitution Of North Korea: Its Changes And Implications, Dae-Kyu Yoon

Fordham International Law Journal

Though a departure from mainstream socialist States, a glimpse of North Korea's Constitution can still provide observers with an understanding of how North Korea has undergone and responded to social changes and vicissitudes. Hence, this Essay sets out to do a number of things. First, this study succinctly examines the nature and status of law in North Korea. Second, it reviews the country's constitutional history in sequence, and then, provides a more in depth look into the characteristics of the current Constitution. Conclusions are then drawn from this examination. The goal of this Essay is not to describe the principles …

The Legal Development Of The Environmental Policy In The Democratic People's Republic Of Korea, Sangmin Nam

Fordham International Law Journal

Credited with transforming North Korea into a green and livable people's land due to his environmental vision, Kim Il Sung often pointed out serious environmental degradation, such as air pollution in industrial cities, water pollution, and deforestation. Eventually, the leadership turned to laws for better implementation of environmental protection. In explaining this law-making process, this Essay first discusses the understanding and interpretation of the environment in the DPRK. It is critical to discuss North Korean leaders' perceptions of the environment because their interpretation precedes the decisions and laws of the Cabinet and the Korean Workers' Party. After discussing the failings …

The Trial Of Saddam Hussein: What Kind Of Court Should Prosecute Saddam Hussein And Others For Human Rights Abuses, Justice Richard Goldstone

Fordham International Law Journal

The capture of Saddam Hussein alive is of course a cause for rejoicing. His crimes were massive. He left hundreds of thousands of victims in Iraq; the Shiites who dared to oppose him, the Kurds against whom he committed a most terrible genocide. The question now and the subject of this talk is what to do in order to bring him justice. Having captured him and some of his chief lieutenants, how should they be brought to justice? Broadly speaking, there are four options. The first is a wholly domestic trial in Baghdad before Iraqi judges. The second option would …

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.

Moving Forward, Never Backwards: Preventing Fraud In The European Union And Defining European Central Bank Independence , Shaun A. Reader

Fordham International Law Journal

Part I of this Note will describe the need for anti-fraud measures within the Community. Part I will also detail the various legislative actions taken by the Commission, the Parliament and Council, and by the ECB and by the EIB to combat fraud. Part II will present the Commission's case against the ECB, the ECB's defense, the views expressed by Advocate General Jacobs and the ultimate judgment of the ECJ. Part II will focus primarily on the Commission v. ECB, but will note similarities and variances from the Commission's case against the EIB. Finally, Part III will discuss the leeway …

The Free Trade Area Of The Americas And Smaller Economies, The Most Honourable P. J. Patterson

Fordham International Law Journal

Although the FTAA promises growth and development it still poses real challenges and demands some difficult decisions when attempting to achieve its intended goal of promoting stronger, more dynamic trade, and economic growth in this hemisphere. The concerns are greatest for the smaller and more vulnerable economies. They face the prospect of revenue loss through tariff reduction, job losses through consolidation of production centers in more powerful territories, and the demise of marginal and weak producers. It is for these reasons that attention to the status of smaller economies is essential in the FTAA.

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 …

Opportunities And Challenges: The Caribbean Involvement In The Free Trade Area Of The Americas, Myrtle D. Bishop, Samuel J. Chandler

Fordham International Law Journal

This Article will examine the region's participation in the process leading to the establishment of the FTAA, and the benefits and challenges associated with its involvement in this hemispheric undertaking. Part One of the Article sets out the rationale for the establishment of the FTAA and the structure of the negotiations. The section also identifies some elements of the unique nature of the proposed grouping. Part Two discusses the challenges facing Caribbean countries as they participate in multilateral trade negotiations, including the FTAA. In Part Three, the Article critically reviews the early stages of the integration process in the Caribbean …

The Free Trade Area Of The Americas And Brazil, Ambassador Rubens Antonio Barbosa

Fordham International Law Journal

Describes the importance of Brazil in the FTAA, the reasons for its interest, and the role that it will play in shaping the organization’s future.

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 …

Mercosure, The Free Trade Area Of The Americas, And The Future Of U.S. Hegemony In Latin America, Dr. Mario E. Carranza

Fordham International Law Journal

The purpose of this Article is to examine U.S. hegemony in Latin America by looking at the impact of the Free Trade Area of the Americas ("FTAA") negotiations on U.S.-Latin American relations. Does the FTAA process confirm the claim that "since World War II ... the general trend has always been for the United States to exert a great degree of influence over Latin American countries..."? Does it mark the beginning of a new, more balanced relationship between the United States and Latin America, a mature partnership based on reciprocity, mutuality of interests and mutual respect? Alternatively, are the United …

Prosecutors And Their Agents, Agents And Their Prosecutors, Daniel C. Richman

Faculty Scholarship

This Article seeks to describe the dynamics of interaction between federal prosecutors and federal enforcement agents, and to suggest how these dynamics affect the exercise of enforcement discretion. After considering the virtues and pitfalls of both hierarchical and coordinate organizational modes, the Article offers a normative model that views prosecutors and agents as members of a "working group," with each side monitoring the other. It concludes by exploring how this model can be furthered or frustrated with various procedural and structural changes.

Juror Information On The Web: A Study Of Hispanic Populated Texas Counties, Irma S. Jones, Janna Arney, Dianna Blankenship

Teaching and Learning Faculty Publications

In response to the initiative of providing juror education materials online, this study proposes that unless Web sites are designed in a usable fashion, this initiative could fail to enhance jury response and further aggravate the problem of underrepresentation by minorities. This study suggests that all online juror information Web sites be analyzed for “usability” and “design” if they are to be an effective education tool. In addition, this study proposes to compare responses to county Web sites in order to gauge bias responses of participants to their own county’s Web site vs. other county Web sites.

The New Economic Credentialing: Protecting Hospitals From Competition By Medical Staff Members, Elizabeth Weeks

Scholarly Works

This Article addresses hospitals' use of economic criteria to determine a physician's qualifications for staff privileges. Hospitals are resorting to economic conflict-of-interest credentialing policies in an attempt to ensure physicians' loyalty and mantain their own economic viability. Physicians, however, argue that entrepenurial activities are necessary for them to meet the economic challenges posed by declining reimbursement and rising insurance costs. This Article surveys the numerous legal theories that litigants and enforcement authorities could employ in attacking these new types of credentialing policies. The Article concludes that, in most jurisdictions, hospitals should be able to implement their policies in ways that …

One Inspiring Jury, Phoebe C. Ellsworth

Reviews

Americans love to complain about the jury. They complain about being called for jury duty. They complain about jury verdicts in highly publicized cases. They are outraged by the failure to convict "obviously guilty" criminals, such as the police officers in the cases of Rodney King and Amadou Diallo, the Menendez brothers in their first trial, and of course O.J. Simpson. In civil cases, they are appalled when plaintiffs win huge damage awards in "obviously frivolous" lawsuits. Juries are ignorant and uneducated, juries are gullible, juries are swayed by passion and prejudice rather than reason. Criticizing jury verdicts allows us …

Review Of Explaining The English Revolution: Hobbes And His Contemporaries, Donald J. Herzog

Reviews

The explosion of primary texts from seven- teenth-century England continues to trigger an explosion of scholarly treatments today. For good reason, too: Lots of the primary texts are amazing, and not just those tired old warhors- es, Hobbes's Leviathan and Locke's Second Treatise. As fun and challenging as the primary texts are, you are forgiven a touch of skepticism if you wonder just what the latest author has to add to our understanding. You might redouble your skepticism if you just glance at Mark Stephen Jendrysik's table of contents, offering chapters on Winstanley, Milton, Cromwell, Filmer, and Hobbes, and zeroing …

Rethinking The Death Penalty: Can We Define Who Deserves Death – A Symposium Held At The Association Of The Bar Of The City Of New York May 22, 2002, Martin J. Leahy, Norman L. Greene, Robert Blecker, Jeffrey L. Kirchmeier, William M. Erlbaum, David Von Drehle, Jeffrey A. Fagan

Faculty Scholarship

In light of the defects of the capital punishment system and recent calls for a moratorium on executions, many are calling for serious reform of the system. Even some who would not eliminate the death penalty entirely propose reforms that they contend would result in fewer executions and would limit the death penalty to a category that they call the "worst of the worst." This program asks the question: Is there a category of defendants who are the "worst of the worst?" Can a crime be so heinous that a defendant can be said to "deserve" to be executed? Would …

Governance Failures Of The Enron Board And The New Information Order Of Sarbanes-Oxley, Jeffrey N. Gordon

Faculty Scholarship

Analysis of the corporate governance crisis that manifested itself in the United States at the turn of the millennium requires separating its various strands. The Enron Corporation ("Enron") debacle and the dot corn bubble and collapse, for example, share some common elements but in other ways they are quite different. In both cases investors became aggressively enamored of an unsustainable business model. In the dot com case it was the belief that an innovator in a rapidly growing market could attain powerful first mover advantages that would produce an eventual cascade of profits, so that a current and increasing stream …

Proximate Cause And The American Law Institute: The False Choice Between The "Direct Consequences" Test And The "Risk Standard", Michael Wells

Scholarly Works

This article takes a new look at an old problem that lies at the heart of tort law: How does one define the scope of liability when a negligent actor causes unforeseeable harm? This topic once drew the attention of such legal giants as Benjamin Cardozo, Robert Keeton, and William Prosser. Today it seems largely forgotten, except for a class or two in first year torts courses.

The occasion for examining the unforeseeable harm issue is the proposed revision of the Restatement (Third) of Torts by the American Law Institute ("ALI"). In a tentative draft of portions of the Restatement …

Arbitration And The Administrative State, Rebecca H. White

Scholarly Works

Two important doctrinal developments of the 1980s--judicial deference to agency interpretations of statutes and the enforceability of predispute agreements to arbitrate statutory claims--individually have received considerable attention from courts and commentators. However, the interplay between these two doctrinal strands has gone largely unnoticed. This Article recognizes that both strands have something important in common--each upholds statutory interpretation by entities which the Chevron doctrine, in which the Court held that statutory silence or ambiguity may serve as an implied delegation of interpretative authority to administrative agencies, applies in the context of arbitration of statutory claims. It considers whether an understanding of …

Foreword: Symposium--Ethics 2000 And Beyond: Reform Or Professional Responsibility As Usual, Lonnie T. Brown, Jr.

Scholarly Works

The topic of this Symposium -- Ethics 2000 and Beyond: Reform or Professional Responsibility as Usual? -- is one that likely does not immediately resonate with many other than professional responsibility teachers and scholars. It is, however, a subject of critical importance to all existing and future members of the legal profession. This was true at the time that the Symposium was conducted in the spring of 2002, and it is even truer today in light of ever-growing concerns with regard to the ethical duties of lawyers, particularly those who represent corporate clients believed or known to be involved in …

Legal Regulation Of The Effects Of Military Activity On The Environment, Daniel M. Bodansky

Scholarly Works

While in times of peace a growing number of multilateral environmental agreements serves to protect the environment, existing international law affords only very limited protection against the threats of war to the environment. This is the finding of a study by Prof. Daniel Bodansky, University of Georgia, USA on behalf of the German Federal Environmental Agency (Umweltbundesamt) which reviews the adequacy of the law of war and of the general principles of international law to protect the environment. At present international law leaves nation states with a wide degree of discretion to justify environmental harm caused by acts of war.

Lightening The Load: In The Georgia Supreme Court, R. Perry Sentell Jr.

Scholarly Works

The Supreme Court of Georgia enjoys legendary status in perpetuating both "law" and "justice" for the citizens it serves. It functions as an institution of rich tradition, and it operates from a perspective of historic proportions. The court's heritage exudes a profusion of shaping facets, facets coalescing to yield an indelible profiles of Georgia's juristic content. That profile reflects such characteristics as the court's authoritative underpinnings: the legends of judicial fame to whom the court periodically returns for lessons of wisdom. Other distinctions focus upon the court's output: the per curiam opinion, for example, constitutes an expressive peculiarity of historical …

The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck

Scholarly Works

Section I of this article seeks to correct a common scholarly misconception regarding the sort of pretext review envisioned by McCulloch v. Maryland. All students of McCulloch understand the decision to call for judicial review of the means-end relationship underlying a federal statute. But McCulloch also indicated that the Court would strike down legislation "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government." Various constitutional scholars construe this pretext passage to contemplate a second inquiry--separate from the Court's scrutiny of means-end relationships--into whether the legislative motive behind a …

Assessing International Criminal Adjudication Of Human Rights Atrocities, Diane Marie Amann

Scholarly Works

These remarks were presented on January 5, 2001, as part of a panel on international criminal adjudication at a conference entitled "Into the 21st Century: Reconstruction and Reparations" in Cape Town, South Africa.

The United States joined a number of countries that rushed to sign the treaty to establish the International Criminal Court. They included states like Yemen, Iran, and Israel. These three, along with the United States, were among the few that had refused to vote in favor of the treaty when it was adopted at a diplomatic conference in Rome in 1998. By the end of 2000, 139 …

Summary Of Daniel V. State, Clarke Walton

Nevada Supreme Court Summaries

Appellant, Donald M. Mosely, shot and killed Frederick Washington and Mark Payne. At the same time, Terhain Woods and Antione Hall were also shot by Mosely, but both survived. On July 28, 1997, Moseley was convicted in district court of firstdegree murder, attempted murder with use of a deadly weapon, and burglary while in possession of a firearm. During Mosely’s trial, a number of errors occurred, which brought rise to this appeal. Because of these cumulative errors, the Nevada Supreme Court reversed appellant’s conviction and remanded the case for a new trial. In analyzing the issues raised by appellant on …

Summary Of Hathaway V. State, Melanie Koep

Nevada Supreme Court Summaries

Proper person appeal from an order of the Eighth Judicial District Court, Honorable John S. McGroarty, denying appellant’s post-conviction petition for writ of habeas corpus.