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2006

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Full-Text Articles in Law

Signed, Sealed, Delivered, And ?: The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States., Alexandra R. Harrington Dec 2006

Signed, Sealed, Delivered, And ?: The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States., Alexandra R. Harrington

ExpressO

Abstract: Signed, Sealed, Delivered, and ?: The Correlation Between Policy areas, Signing, and Legal Ratification of Organization of American States’ Treaties by Member States.

Like any organization, the Organization of American States’ ability to affect lasting policy changes through treaties is only as strong as the will of the federal legislative bodies of its member states. No matter how lofty or well-meaning the OAS’s goals in any area or matter addressed by a treaty, or the number of OAS member states which sign onto a treaty reflecting these goals, under the OAS Charter, and the federal constitutions of most member …


The Definition And Jurisdiction Of The Crime Of Aggression And The International Criminal Court, Buhm-Suk Baek Dec 2006

The Definition And Jurisdiction Of The Crime Of Aggression And The International Criminal Court, Buhm-Suk Baek

Cornell Law School J.D. Student Research Papers

The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court that was held in Rome to establish the International Criminal Court in 1998 finally adopted the Rome Statute with the participation of 160 countries. The Rome Statute of the ICC entered into force on 1 July 2002 and has been ratified by 100 States. What was considered not so long ago merely a dream of a few people has become a reality after the strenuous efforts of the UN over 50 years. However, one central issue still remains unresolved in the Rome Status. It is …


Beyond Bankovic: Extraterritorial Application Of The European Convention On Human Rights, Federico Sperotto Nov 2006

Beyond Bankovic: Extraterritorial Application Of The European Convention On Human Rights, Federico Sperotto

Human Rights & Human Welfare

The obligations set forth in the international and regional instruments on human rights are considered as having a strictly territorial scope. States parties have the duty to guarantee the rights recognized in the treaties to all individuals within their territories. The territorial reach of these obligations is expanding by way of interpretation. In its decision on Bankovic, the European Court reduced the impact of this international trend toward a progressive enlargement of the protection granted by human rights treaties, affirming those attacks conducted by NATO against Yugoslavia in 1999 fell out of the extraterritorial reach of the European Convention. After …


Maryland’S "Wal-Mart" Act: Policy And Preemption, Edward A. Zelinsky Nov 2006

Maryland’S "Wal-Mart" Act: Policy And Preemption, Edward A. Zelinsky

Articles

Maryland's Wal-Mart Act raises two fundamental questions: Is the Act legal? Does the Act represent sound policy?

With respect to the legality of the Maryland statute, I conclude that the Employee Retirement Income Security Act of 1974 (ERISA) preempts the Maryland law. As a matter of policy, the Maryland statute is ill-conceived. The Maryland Act raises prices on Wal-Mart's predominantly low-income customers and, for the long run, will reduce Wal-Mart's employment.

In the final analysis, Maryland's Wal-Mart Act is a poorly-designed exercise in political symbolism, rather than a carefully-crafted response to the pressing problem of health care in America.


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


Airline Liability For Loss, Damage Or Delay Of Passenger Baggage, M. R. Franks Oct 2006

Airline Liability For Loss, Damage Or Delay Of Passenger Baggage, M. R. Franks

ExpressO

The article discusses remedies and methods of enforcing airline liability for loss, damage or delay of passenger baggage. The article includes a discussion of the law as it relates both to domestic flights and to international flights where passenger luggage is lost, damaged or delayed. The article includes a discussion of the Warsaw Convention as it relates to international flights and of the Federal Aviation Regulations applicable in the case of domestic flights.


The Demise Of Federal Takings Litigation, Stewart E. Sterk Oct 2006

The Demise Of Federal Takings Litigation, Stewart E. Sterk

Articles

For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court's …


Distinguishing Certification From Abstention In Diversity Cases: Postponement Versus Abdication Of The Duty To Exercise Jurisdiction, Deborah J. Challener Sep 2006

Distinguishing Certification From Abstention In Diversity Cases: Postponement Versus Abdication Of The Duty To Exercise Jurisdiction, Deborah J. Challener

ExpressO

When a federal court grants an abstention-based dismissal in a diversity case, the court abdicates its strict duty to exercise its jurisdiction where that jurisdiction has been properly invoked. Thus, a federal court may not dismiss a case on abstention grounds unless it concludes that "exceptional circumstances" require the dismissal. When a federal court grants an abstention-based stay in a diversity case, however, the court does not violate its jurisdictional duty. According to the Supreme Court, an abstention-based stay is merely a postponement of the exercise of jurisdiction. Although the Court has characterized an abstention-based stay as a delay rather …


Corporations And The Lateral Obligations Of The Social Contract, Benedict Sheehy Sep 2006

Corporations And The Lateral Obligations Of The Social Contract, Benedict Sheehy

ExpressO

Social contract theorists suggest that society at some level is based on the idea that human people surrender freedom for the privilege of participating in society. That participation implicitly requires more than mere minimal compliance with law. Each human person’s contribution to society above the legal baseline, permits humans to create a society that is at least tolerable. Corporations as non-human act without regard for these supra-legal obligations which results in society suffering injustice. Corporate participation in society has become increasingly unjust and has done so to the extent that we may speak of living in a post-ethical world.


Power Or Prudence: Which Is It?, Lisa A. Dolak Sep 2006

Power Or Prudence: Which Is It?, Lisa A. Dolak

ExpressO

In limiting patent litigants’ access to the declaratory judgment remedy, the U.S. Court of Appeals for the Federal Circuit has primarily invoked the “actual controversy” requirement imposed by the U.S. Constitution and the federal Declaratory Judgment Act. However, an examination of Federal Circuit decisions and those of the district courts reveals that the courts have often confused, or blurred the distinction between, constitutional requirements and the discretion the Act affords the federal courts to decline to exercise jurisdiction. Specifically, the courts often attribute constitutional significance to factors that instead bear on policy.

It is important to distinguish between jurisdictional limits …


A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch Sep 2006

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …


Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic Sep 2006

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …


An Empirical Assessment Of Federal Question Jurisdiction, Jack F. Preis Aug 2006

An Empirical Assessment Of Federal Question Jurisdiction, Jack F. Preis

ExpressO

For ages, judges and legal academics have claimed that federal question jurisdiction has three purposes: to provide litigants with a judge experienced in federal law, to protect litigants from state court hostility toward federal claims and to preserve uniformity in federal law. Although one could fill a small library with books and articles endorsing this conception of federal question jurisdiction, one would be hard-pressed to find a single article testing these rationales empirically.

This Article seeks to be the first such piece of scholarship. Based on a study of thousands of state court cases across fifteen different states, it first …


Standing For Extraterritoriality: Defining The Empagran Exception, Max Huffman Aug 2006

Standing For Extraterritoriality: Defining The Empagran Exception, Max Huffman

ExpressO

Efforts by private plaintiffs to enforce the U.S. antitrust laws extraterritorially have become an enormous industry. A reflection of the challenges facing federal courts in this global age, F. Hoffman-LaRoche Ltd. v. Empagran S.A. (Empagran) held the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) precluded the assertion by U.S. courts of jurisdiction over claims by foreign plaintiffs alleging harm felt in wholly foreign commerce.

Empagran left an exception that undermines its general rule. Plaintiffs able sufficiently to show “the anticompetitive conduct’s domestic effects were linked to their foreign harm” are excepted from the preclusion. This is the “Empagran exception.” …


American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson Aug 2006

American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson

ExpressO

Although the American military is effectively one of the most potent of international institutions, discussions of its regulation have been oddly domestic. The court-martial – the single most important institution for disciplining military forces, preventing atrocities and punishing offenders – has seen its jurisdiction and procedures hotly debated, but most often by those in uniform or individuals interested in domestic military policy. This paper aims to internationalize the discussion, recognizing that the discipline of American military forces is of major concern to both international law and U.S. foreign policy. By exploring the interaction between a major innovation in international law …


Federalism And Private International Law: Implementing The Hague Choice Of Court Convention In The United States, Stephen B. Burbank Jul 2006

Federalism And Private International Law: Implementing The Hague Choice Of Court Convention In The United States, Stephen B. Burbank

All Faculty Scholarship

Federalism is important in the United States. It is also important that the United States be able to participate effectively in a global economy and that those charged with the conduct of the country's foreign affairs be able to make, and that the country abide by, international agreements that are designed to facilitate transnational commercial activity. The Hague Choice of Court Convention is one such agreement, the modest fruits of more than a decade of work in an international lawmaking effort that was initiated by the United States. However modest the fruits of the enterprise, the rest of the world …


Jurisdictional Fact, Kevin M. Clermont Jul 2006

Jurisdictional Fact, Kevin M. Clermont

Cornell Law Faculty Publications

What kind of factual showing must the plaintiff make in order to establish, say, personal jurisdiction? While that question may seem simple enough, real difficulties in regard to the standard of proof arise when there is a similarity of the facts entailed in the jurisdictional determination and those on the merits. Surely, the plaintiff has to do more than allege that the defendant is the author of state-directed acts or omissions. Yet, almost as surely, the plaintiff should not have to prove the cause of action in order to establish jurisdiction. The plaintiff thus must have to show something between …


“Thinking Globally, Acting Locally”: Recent Trends In The Recognition And Enforcement Of Foreign Judgments In Canada, Antonin I. Pribetic Jul 2006

“Thinking Globally, Acting Locally”: Recent Trends In The Recognition And Enforcement Of Foreign Judgments In Canada, Antonin I. Pribetic

ExpressO

The continuing evolution of the “real and substantial connection” test for the recognition and enforcement of foreign judgments remains a topic of immediate interest. Since the landmark decision in Morguard Investments Ltd. v. De Savoye, and more recently in Beals v. Saldanha, Canadian jurisprudence for the recognition and enforcement of foreign judgments has been dominated by judicial and legislative unilateralism: the establishment of a domestically imposed standard (the lex fori) striving towards national uniformity informed by private international law (or conflict of laws) principles. While the “real and substantial connection” test for jurisdiction simpliciter provides a flexible analytical framework for …


Tough Love: The Dramatic Birth And Looming Demise Of Unclos Property Law (And What Is To Be Done About It), Peter S. Prows Jul 2006

Tough Love: The Dramatic Birth And Looming Demise Of Unclos Property Law (And What Is To Be Done About It), Peter S. Prows

ExpressO

The 1982 United Nations Convention on the Law of the Sea (“UNCLOS”) represents the culmination of thousands of years of international relations, conflict, and now nearly universal adherence to an enduring order for ocean space that is the most significant achievement for international law since the UN Charter. UNCLOS establishes international property law erga omnes that, by legal and political necessity, required a bargained consensus to be effective. This bargain, in essence, provided coastal States with extended but limited jurisdictions, while ensuring that the seabed and its mineral resources beyond were the “common heritage of mankind” that would peaceably and …


Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy Jul 2006

Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy

ExpressO

After 14 years of unconscionable wrath against local civilians, including enforced recruitment of thousands of child soldiers, the rebel group The Lord’s Resistance Army (“LRA”) was offered amnesty by the Ugandan government in 2000. However, as the conflict continued unabated, the Ugandan government, for the first time in the history of the Court, referred its case to the International Criminal Court (“ICC”). The ICC Prosecutor announced the beginning of an investigation and issued warrants for seven top LRA officers in October of 2005. The potential ICC prosecution raises many questions about the jurisdiction of the new court, including whether the …


Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp Jun 2006

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.


Consistent “Deeming”: A Cohesive Construction Of 28 U.S.C. § 1332 In Cases Involving International Corporations And Permanent-Resident Aliens., Rory M. Ryan Jun 2006

Consistent “Deeming”: A Cohesive Construction Of 28 U.S.C. § 1332 In Cases Involving International Corporations And Permanent-Resident Aliens., Rory M. Ryan

ExpressO

Two categories of alienage-jurisdiction cases have proven troublesome: cases involving permanent-resident aliens and cases involving international corporations. Jurisdiction in these categories depends upon the construction of 28 U.S.C. § 1332’s deeming provisions. The permanent-resident deeming provision and the corporate deeming provision operate uncontroversially to remove certain cases from federal jurisdiction, but controversy exists as to what extent they create jurisdiction that did not exist before the amendments that added the deeming provisions. The results and analytical approaches in these categories have varied, and the resulting confusion is unsatisfactory. The cases in this area are plagued by a structural flaw—while framing …


The Military Extraterritorial Jurisdiction Act And Its Implications For Private Military Companies, Dustin M. Tipling May 2006

The Military Extraterritorial Jurisdiction Act And Its Implications For Private Military Companies, Dustin M. Tipling

ExpressO

Private Military Companies (PMCs) are civilian staffed corporations that provide military (and law enforcement) services, logistics, and support under contract to a government both inside and outside the country’s borders. Prior to Congress passing the Military Extraterritorial Jurisdiction Act, U.S. courts lacked jurisdiction to prosecute civilians accompanying United States’ Armed Forces overseas. This article will specifically address how the United States exercises jurisdiction and prosecutes the civilian employees of PMCs in United States courts for crimes they have committed in foreign countries while working under contract to the United States government.


Saddam Hussein's Trial In Iraq: Fairness, Legitimacy & Alternatives, A Legal Analysis, Christian Eckart May 2006

Saddam Hussein's Trial In Iraq: Fairness, Legitimacy & Alternatives, A Legal Analysis, Christian Eckart

Cornell Law School J.D. Student Research Papers

The paper focuses on Saddam Hussein’s trial in front of the Iraqi High Criminal Court in Baghdad. After providing an overview of the facts surrounding the court’s installation, the applicable international law is identified and the fairness and legitimacy of the current proceedings are analyzed. The paper finishes by considering whether the trial should be relocated and addresses alternative venues that could have been chosen to prosecute Iraq’s ex-dictator.


The Exercise Of Personal Jurisdiction Over Some Foreign State Instrumentalities Must Be Consistent With Due Process, Gosia Spangenberg May 2006

The Exercise Of Personal Jurisdiction Over Some Foreign State Instrumentalities Must Be Consistent With Due Process, Gosia Spangenberg

Washington Law Review

The Fifth Amendment's Due Process Clause places limitations on courts' judicial power. Due process concerns arise when a forum exercises personal jurisdiction over a nonresident defendant for actions carried on outside the forum's territory. Those concerns are alleviated when the defendant has adequate "minimum contacts" with the forum. Although foreign states are presumed to be immune from the jurisdiction of U.S. courts, the Foreign Sovereign Immunities Act (FSIA) grants U.S. courts jurisdiction over foreign states under certain circumstances. Several FSIA exceptions to foreign state immunity extend to conduct that occurs outside of the U.S. Moreover, the jurisdictional nexus requirements associated …


On Law, Wars, And Mercenaries: The Case For Courts-Martial Jurisdiction Over Civilian Contractor Misconduct In Iraq, Wm. C. Peters May 2006

On Law, Wars, And Mercenaries: The Case For Courts-Martial Jurisdiction Over Civilian Contractor Misconduct In Iraq, Wm. C. Peters

BYU Law Review

No abstract provided.


The Sosa Decision, Jeffrey P. Saxon Apr 2006

The Sosa Decision, Jeffrey P. Saxon

ExpressO

The manner in which international law is applied by the domestic courts of the United States has been an issue without any definitive boundaries since 1789. It is unclear as to the type and extent of international law that could be brought as a cause of action inside the United States for events that occurred outside its borders. The landmark case of Sosa v. Alvarez-Machain, decided by the Supreme Court in 2004, has changed the landscape in this area. This decision will alter the field of domestic enforcement of international law by making it exceedingly difficult for an non-citizen to …


The Application Of Federal Common Law To Overcome Conflicting State Laws In The Supplemental Disgorgement Proceedings Of An Sec Appointed Receiver, Gauhar Naseem Apr 2006

The Application Of Federal Common Law To Overcome Conflicting State Laws In The Supplemental Disgorgement Proceedings Of An Sec Appointed Receiver, Gauhar Naseem

ExpressO

In spite of the Erie doctrine, the application of federal common law has survived to overcome conflicting state laws in diversity actions where a federal law, interest or function is implicated. A federal court’s authority to substantively implement a federal common law rule over state law is clearest when the party to the action is a federal entity, namely an agency of the U.S. Government deriving its authority from the Constitution or some source of federal law. Analyzing such authority becomes more difficult in circumstances where parties to a diversity lawsuit are private citizens (not necessarily possessing any direct federal …


Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer Apr 2006

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Faculty Publications

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …


Exorbitant Jurisdiction, Kevin M. Clermont, John R.B. Palmer Apr 2006

Exorbitant Jurisdiction, Kevin M. Clermont, John R.B. Palmer

Cornell Law Faculty Publications

Exorbitant territorial jurisdiction in civil cases comprises those classes of jurisdiction, although exercised validly under a country's rules, that nonetheless are unfair to the defendant because of a lack of significant connection between the sovereign and either the parties or the dispute. The United States, France, and most of the rest of the world exercise a good deal of exorbitant jurisdiction so defined. In the United States, an emphasis on power derived from territoriality has led to jurisdictional restraint in some respects, but has also allowed general jurisdiction based solely on transient physical presence, the attachment of property, or extensive …