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Legal Pluralism Between Islam And The Nation-State: Romantic Medievalism Or Pragmatic Modernity?, Sherman A. Jackson
Legal Pluralism Between Islam And The Nation-State: Romantic Medievalism Or Pragmatic Modernity?, Sherman A. Jackson
Fordham International Law Journal
This Essay attempts a reconciliation of sorts between two perspectives on legal pluralism, via specific reference to Islamic law, most notably in its pre-modern guise. The Essay begins with a provisional commitment to legal centralism, but primarily as a means of securing a functional place for sub-State reglementary regimes. To this end, legal centralism, as presented, is tempered by a demonstration that, even where the State enjoys an exclusive monopoly on the application of sanctions with impunity, it need not be the actual source of every rule it recognizes or applies as law.
A Force For Globalization: Emerging Markets Debt Trading From 1994 To 1999, Ross P. Buckley
A Force For Globalization: Emerging Markets Debt Trading From 1994 To 1999, Ross P. Buckley
Fordham International Law Journal
This Article analyzes the history from 1994-1999 of the secondary market in emerging markets debt, identifying the lessons learned from that period of market development. It pays particular attention to the increasing integration of the secondary market for emerging markets debt with traditional financial markets, and to the force for globalization that this secondary market therefore exerted in the period.
Addressing The Emergence Of Advocacy In The Chinese Criminal Justice System: A Collaboration Between A U.S. And A Chinese Law School , Robert Lancaster, Ding Xiangshun
Addressing The Emergence Of Advocacy In The Chinese Criminal Justice System: A Collaboration Between A U.S. And A Chinese Law School , Robert Lancaster, Ding Xiangshun
Fordham International Law Journal
This Article addresses how the procedural, educational, and professional changes in China’s legal system have affected criminal trial procedure and criminal trial practice in the country. It discusses how these changes have created a need for Chinese criminal judges, prosecutors, and defense attorneys to be well versed in the adversarial process. It describes how the China Trial Advocacy Institute, a collaborative project between Renmin University of China School of Law and Indiana University School of Law-Indianapolis, has developed to help address this emerging need.
Expanding And Sustaining Clinical Legal Education In Developing Countries: What We Can Learn From South Africa , Peggy Maisel
Expanding And Sustaining Clinical Legal Education In Developing Countries: What We Can Learn From South Africa , Peggy Maisel
Fordham International Law Journal
This Article reviews the development of clinical education in South Africa and the valuable lessons such an analysis provides for those seeking to promote clinical education elsewhere. This Article reviews the obstacles faced in South Africa and the creative ways clinicians have attempted to overcome them, some much more successful than others.
An Internet-Based Mental Disability Law Program: Implications For Social Change In Nations With Developing Economies, Michael L. Perlin
An Internet-Based Mental Disability Law Program: Implications For Social Change In Nations With Developing Economies, Michael L. Perlin
Fordham International Law Journal
This Article first briefly discusses the use of distance learning in a law school environment, and considers the special implications of distance learning for persons with disabilities. It then explains the structure and rationale of these courses, reports on a course section taught in Nicaragua in the Fall-Winter of 2002, and considers plans to replicate the Nicaraguan experience throughout other nations with developing economies in Africa, Asia, Central America, and Central and Eastern Europe. Finally, this Article assesses the potential impact of such a course on developing-economy nations.
U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson
U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson
Fordham International Law Journal
Our specific topic is Guantanamo, but in my brief remarks I would like to take the long view of U.S. counterterrorism policy (including Guantanamo) and link it to the question of the compliance of the United States, as today's superpower, with international human rights norms, its relationship to the United Nations and, speaking very broadly, international law norms as conceived by the international community. This is partly a question of the relationship of U.S. counterterrorism policy to international law. But it is also a question of the relationship of the superpower to the rest of the international community, and in …
The Attorney-Client Relationship In Guantanamo Bay, Mark Denbeaux, Christa Boyd-Nafstad
The Attorney-Client Relationship In Guantanamo Bay, Mark Denbeaux, Christa Boyd-Nafstad
Fordham International Law Journal
First, the government restrictions found in the Protective Order and the new regulations severely limit the amount of contact the attorney can have with the client and the type of information that can be shared with the client. Second, the stay of the court proceedings since December 2004 has prevented any opportunity to present issues in the courts. Third, cultural barriers between attorneys and clients, including but not limited to the clients' inability to understand the rule of law and the role of lawyers in the Common Law adversary model in general, and in the U.S. legal system in particular, …
The Prosecution Of War Crimes: Military Commissions And The Procedural And Substantive Protections Beyond International Law, Tim Bakken
Fordham International Law Journal
This Article examines the procedures contained in the Military Commissions Act of 2006 (“MCA”) and finds that they are consistent with the practice of prior military tribunals, domestic and international law, and recent U.S. Supreme Court decisions. The Article discusses specifically two questions that have arisen since the U.S. Supreme Court's decision in Hamdan v. Rumsfeld and Congress's subsequent passage of the MCA. First, do the procedures in the MCA comport with international standards? The Article considers the procedures arising from international agreements and those used in military tribunals during and after World War II, the international tribunals for Rwanda, …
Guantanamo And U.S. Law, Joseph C. Sweeney
Guantanamo And U.S. Law, Joseph C. Sweeney
Fordham International Law Journal
This Article deals with the United States' presence at Guantanamo Bay, Cuba, the domestic and international law issues that have arisen, and the nature of the jurisdiction exercised there by the United States. It does not deal with the operation of the prison facility. Guantanamo Bay is near the eastern end of Cuba, 628 miles (1000 km) from the capital, Havana. It is a deep-water harbor, protected by hills from the extremes of Caribbean weather; but it has an unhealthy tropical climate. The forty-five square miles of the Guantanamo Naval Base have been occupied by the United States since the …
The Reform Path Of The Chinese Judiciary: Progress Or Stand-Still?, Jonas Grimheden
The Reform Path Of The Chinese Judiciary: Progress Or Stand-Still?, Jonas Grimheden
Fordham International Law Journal
In the later part of 2007 China will be at yet another watershed moment. The 17th Party Congress will be held, where new leaders of China will jockey into position. Will these leaders proceed on the slow and cautious trail set out by their predecessors? Will they regress to the demands of the ultra-conservative “left-wingers”? Or will the likely rejuvenated leadership be bold enough to face the many challenges with a more progressive agenda? This Essay addresses these questions by briefly describing and analyzing the development and the potential of the Chinese judiciary. In this analysis, the judiciary functions more …
Precedent And Control In Investment Treaty Arbitration, Tai-Heng Cheng
Precedent And Control In Investment Treaty Arbitration, Tai-Heng Cheng
Fordham International Law Journal
This Article's thesis is that, although arbitrators in investment treaty arbitration are not formally bound by precedent in the same manner as common-law judges, there is an informal, but powerful, system of precedent that constrains arbitrators to account for prior published awards and to stabilize international investment law. This informal system, however, imperfectly supports the relevant policy goals. It is additionally being tested by an increasing diversity of arbitrators, who are themselves facing pressures from investors and host States to meet conflicting demands. This Article proposes that the structure of investment treaty arbitration can absorb such stresses if: (a) the …
The Recognition And Enforcement Of Commercial Arbitral Awards In The People's Republic Of China, Fiona D'Souza
The Recognition And Enforcement Of Commercial Arbitral Awards In The People's Republic Of China, Fiona D'Souza
Fordham International Law Journal
This Perspective explores the reality behind the headlines as well as more recent efforts to improve the situation. By examining legal developments and analyzing the obstacles to enforcement, this Perspective will highlight how the issues are largely symptomatic of a developing legal system--a system struggling to translate theory into practice as it attempts to bridge the gap between traditional Chinese and Western expectations of adjudication. Part I outlines the history and background of arbitration in China, while Part II considers the current state of the law, with a particular focus on recent legislative developments. Part III examines the institutional features …
Reconciling Holocaust Scholarship And Personal Data Protection: Facilitating Access To The International Tracing Service Archive, Collin Mcdonald
Reconciling Holocaust Scholarship And Personal Data Protection: Facilitating Access To The International Tracing Service Archive, Collin Mcdonald
Fordham International Law Journal
This Note examines whether amendment of the ITS charter is necessary to effectuate researcher access, or whether, as a matter of international law, in its capacity as an international organization (“IO”), the ITS can allow access without amendments. Addressing this question implicitly raises two collateral issues that inform the discussion. First, to what degree should an IO Member State's domestic legal framework dictate that State's position in a consensus-based IO decision-making process. Second, when changes in the global political context render an existing IO legal structure ill-suited to an IO's evolving mission, to what degree is it appropriate to re-interpret …
Some Reflections On The Notion Of "State Resources" In European Community State Aid Law, Andrea Biondi
Some Reflections On The Notion Of "State Resources" In European Community State Aid Law, Andrea Biondi
Fordham International Law Journal
In this Article the author givesPart I of this Article goes through a brief overview of the contours of state aid in the European Union. Part II is devoted to a specific aspect of the acquis communitaire. As it is well known, Article 87 [of the European Community Treaty] identifies the five preconditions for a State measure to be defined as aid: Transfer of State resources, advantage, selectivity, distortion of competition, and effect on intra-Community trade. The reflections in this Part is confined to the first of those conditions.
Transparency As An Element Of Good Governance In The Practice Of The Eu And The Wto: Overview And Comparison, Friedl Weiss, Silke Steiner
Transparency As An Element Of Good Governance In The Practice Of The Eu And The Wto: Overview And Comparison, Friedl Weiss, Silke Steiner
Fordham International Law Journal
This article seeks to provide a comparative overview of relevant practice of the European Union ("EU") and the World Trade Organization ("WTO") with regard to the interpretation and use made of "good governance," and in particular with regard to "transparency," one of its core component elements.
Unclos And The Arctic: The Path Of Least Resistance, Mark Jarashow, Michael B. Runnels, Tait Svenson
Unclos And The Arctic: The Path Of Least Resistance, Mark Jarashow, Michael B. Runnels, Tait Svenson
Fordham International Law Journal
This Note discusses the territorial disputes in the Arctic, which are becoming increasingly contentious as a result of the Arctic melt, and the potential resolutions through the mechanisms of international law. Part I discusses the scientific consensus regarding the changing Arctic climate and the resulting conflicts that arise from increased interests in the region. Part II evaluates the varying legal paradigms that may be utilized in order to navigate through the competing claims. Part III argues that, given the uncertainties surrounding both the outcome of any potential International Court of Justice ("ICJ") decision and entering into an Arctic Treaty, universal …
Why The Private Sector Is Likely To Lead The Next Stage In The Global Fight Against Corruption, Ethan S. Burger, Mary S. Holland
Why The Private Sector Is Likely To Lead The Next Stage In The Global Fight Against Corruption, Ethan S. Burger, Mary S. Holland
Fordham International Law Journal
This Article focuses on the role of the private sector in fighting corruption. It argues that it is necessary for the private sector to take a more active role in creating meaningful deterrents to international bribery. Part I of the Article offers background on the concept and extent of corruption in general, and bribery in particular. Part II examines the existing U.S. and international legal framework for combating the payment of bribes abroad. Part III looks at non-State actors who may lead implementation efforts in the future.
Irregular Maritime Migration: Refugee Protection Issues In Rescue And Interception, Barbara Miltner
Irregular Maritime Migration: Refugee Protection Issues In Rescue And Interception, Barbara Miltner
Fordham International Law Journal
This Article undertakes a review of maritime interception and rescue-at-sea practices by evaluating the nature and scope of legal protection that each mechanism affords to refugees encountered at sea. For both interception and rescue, the underlying legal framework and State practice will be discussed, and longstanding protection gaps inherent in each will be examined. Attention is then turned to recent protection improvements in both rescue and interception. These recent changes will be analyzed for their strengths and weaknesses, and some suggestions for improving maritime interception safeguards are offered.
John W. Head, The Future Of The Global Economic Organizations: An Evaluation Of The Criticisms Leveled At The Imf, The Multilateral Development Banks, And The Wto, Stephen Zamora
Fordham International Law Journal
This Article reviews Professor John W. Head’s book, The Future of Global Economic Organizations: An Evaluation of Criticisms Leveled at the IMF, the Multilateral Development Banks, and the WTO. Developing country advocates argue that international economic regimes reinforce unequal allocations of wealth both internally, within national economies, as well as among nations. Economic conservatives argue that the World Bank and other multilateral development banks are superfluous in an age of international capital mobility. Professor John W. Head analyzes these and other criticisms in his timely and insightful study.
Re-Imagining International Law: An Examination Of Recent Trends In The Reception Of International Law Into National Legal Systems In Africa, Richard Frimpong Oppong
Re-Imagining International Law: An Examination Of Recent Trends In The Reception Of International Law Into National Legal Systems In Africa, Richard Frimpong Oppong
Fordham International Law Journal
This article suggests that the trend of accepting the supremacy and direct application of international law represents a rethinking of the relationship between international and national law, and that its full implications are yet to be explored. The Article seeks to build on current writings on the subject by analyzing certain regional arrangements and judicial approaches relevant to, but often ignored in the discussion. It attempts not to situate these arrangements or approaches within or outside of the monist/dualist paradigm, but to assess the practical significance of these arrangements for international law, national law, and their respective subjects.
Kriegsraison Or Military Necessity? The Bush Administration's Wilhelmine Attitude Towards The Conduct Of War, Scott Horton
Kriegsraison Or Military Necessity? The Bush Administration's Wilhelmine Attitude Towards The Conduct Of War, Scott Horton
Fordham International Law Journal
One phrase from a memorandum issued by President George W. Bush early in the War on Terror offers an effective summary of a radically transformed military doctrine. “As a matter of policy,” Bush wrote, “the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The statement offered a sense of assurance of continuity of U.S. military doctrine, which many generations viewed as being at or near the vanguard in assuring high standards for the treatment of military prisoners. This was …
When To Push The Envelope: Legal Ethics, The Rule Of Law, And National Security Strategy, Peter Margulies
When To Push The Envelope: Legal Ethics, The Rule Of Law, And National Security Strategy, Peter Margulies
Fordham International Law Journal
This Article argues for pushing the envelope when three conditions are met: (1) the executive engages in dialogue with other players, either before the fact or through timely ex post ratification; (2) pushing the envelope will generate a net positive aggregate of institutional consequences, viewed from an intermediate and long-term perspective; and (3) pushing the envelope harmonizes executive policy with evolving international or domestic norms. When these conditions are met, the lawyer for the executive should recommend the action, even if it appears inconsistent with the letter of existing law. While acting gives both the lawyer and her client “dirty …
Military Commission Trials At Guantanamo Bay, Cuba: Do They Satisfy International And Constitutional Law?, Jennifer Trahan
Military Commission Trials At Guantanamo Bay, Cuba: Do They Satisfy International And Constitutional Law?, Jennifer Trahan
Fordham International Law Journal
Part I of this Article discusses historical precedent for the use of military commissions. Part II discusses President Bush's Military Order of November 13, 2001 (“Executive Order”) [FN14] as well as various procedural rules issued for the military commission trials. [FN15] Part III discusses the U.S. Supreme Court's decision, Hamdan v. Rumsfeld, which struck down those arrangements. Part IV discusses the recent revisions to trial procedures made in the Military Commissions Act, and also analyzes the extent to which these recent revisions: (a) diverge from trial procedures under the Uniform Code of Military Justice; (b) alter U.S. domestic implementation of …
The Guantanamo Protective Order, Brendan M. Driscoll
The Guantanamo Protective Order, Brendan M. Driscoll
Fordham International Law Journal
This Note analyzes the Green Protective Order, and the arguments of its proponents and critics. It aims to facilitate broader public awareness of an issue that, while not commanding newspaper headlines, may actually have greater consequence for Guantánamo prisoners and their counsel than those issues that do attract mass media attention. Part I provides a brief background on protective orders in general and their use in cases involving confidential national security, before examining the Green Protective Order in detail. Part II considers, in detail, three different assessments of the Green Protective Order named above, as these positions have been articulated …
Making Chinese Labor Law Work: The Prospects For Regulatory Innovation In The People's Republic Of China, Sean Cooney
Making Chinese Labor Law Work: The Prospects For Regulatory Innovation In The People's Republic Of China, Sean Cooney
Fordham International Law Journal
This Article examines the capacity of Chinese labor laws and labor institutions to combat abuses. It finds that the Chinese regulatory framework pertaining to work relationships is impeded by a failure to clarify key norms, a bureaucratic “command and control” approach to inspection and dispute resolution, and a narrow and ineffective range of tools for inducing compliance. The Article, however, also finds evidence of emerging regulatory innovation and sophistication that may lead to a much more effective legal response. The legal material relevant to China's labor abuses is vast and highly complex, so it is necessary to choose specific abuses …
The Policies Of State Succession: Harmonizing Self-Determination And Global Order In The Twenty-First Century Tai-Heng Cheng, State Succession And Commercial Obligations, Robert D. Sloane
Fordham International Law Journal
I differ with Cheng's appraisal of certain events and think that we need a more sophisticated analysis of the twin policy goals he identifies and embraces--self-determination and global order--before they can offer real policy guidance. But State Succession and Commercial Obligations stands out as a rigorously researched, original, and insightful effort to understand this quite confused and opaque body of international law. Cheng's work will both enable and encourage a more candid, reasoned, and constructive debate about the global policies at stake each time “a state fundamentally changes its structures of power and authority, and an authoritative international response is …
Asking The Tiger For His Skin: Rights Activism In China, Eva Pils
Asking The Tiger For His Skin: Rights Activism In China, Eva Pils
Fordham International Law Journal
Based on a discussion of consequentialist, pragmatist, and deontological forms of reasoning as applied in debates about Chinese rights-defending, this Article makes two related observations. First, some Chinese rights defenders assess actions merely by whether they will promote institutional reform. They may reject courses of action because they would consider themselves responsible for their bad consequences, such as official reprisals. Their attitude puts them in danger of blinding themselves to the limits of legal reform in China's current constitutional and political structure. Second, according to the more radical view also described here, the case for speaking out against certain wrongs …
Industrial Policy And Competition Law And Policy, Neelie Kroes
Industrial Policy And Competition Law And Policy, Neelie Kroes
Fordham International Law Journal
This afternoon - and it's nearly evening - I would like us to try to rethink industrial policy. I think it makes no sense to speak of industrial policy and competition policy as distinct, one from the other, let alone as antagonistic policies. I would rather define industrial policy as one which frames the structural conditions necessary to ensure economic success in a globalizing economy. I therefore have no qualms in saying that competition policy should form a central plank in any industrial policy. As a member of the European Commission, I will focus my comments on the interconnect between …
Some Thoughts On Evidence And Procedure In European Community Competition Law, Koen Lenaerts
Some Thoughts On Evidence And Procedure In European Community Competition Law, Koen Lenaerts
Fordham International Law Journal
This Article is written in honor of Bo Vesterdorf, President of the Court of First Instance of the European Communities, ("CFI") a court in which we were both sitting as founding judges. Without diminishing the input of Judge Vesterdorf as President of the CFI, I would like to take this opportunity to revisit the first big cartel case that was brought to the CFI. In the so-called Polypropylene case, I was the Judge Rapporteur, and Judge Versterdorf officiated as the Advocate General. This case raised important issues as to evidence and procedure in European Community competition law. Therefore, the aim …
Standing Of Private Plaintiffs To Annul Generally Applicable European Community Measures: If The System Is Broken, Where Should It Be Fixed?, Xavier Lewis
Fordham International Law Journal
This Article will examine the problem of the standing of private litigants by putting the action for annulment in its context. It will describe briefly how the Treaty of Rome set up a complex system in which the acts of the EC Institutions could be reviewed, a task that is shared between the European Courts and the courts of the Member States. It will also describe briefly the different correctives introduced by the Court of Justice and the Court of First Instance to the system as initially envisaged. It will be seen that a good deal of flexibility has been …