Law Commons^™

Conceptualizing Complicity In Alien Tort Cases, Chimène Keitner

Faculty Scholarship

No abstract provided.

Modes Of Procedural Reform, Richard L. Marcus

UC Law SF International Law Review

Procedural reform seems to be a constant concern in most countries, but there are different modes of accomplishing it. One is to empower judges to develop their own rules of procedure. Another is to have a legislative body do so. A third is to borrow procedural regimes from another nation. And a final mode would be to leave procedural reform to a band of "experts" who can devise the preferred solutions to procedural problems. This paper provides an initial examination into whether the mode of procedural reform used influences the nature or aggressiveness of the reforms themselves. Drawing mainly from …

Methods Of International Human Rights Adjudication: Towards A More Structured Decision-Making Process For The European Court Of Human Rights, Stefan Sottiaux, Gerhard Van Der Schyff

UC Law SF International Law Review

An international tribunal such as the European Court of Human Rights is often lauded for its protection of human rights. Yet, there is room for improvement. The Court's adjudication style would benefit from more structured balancing of competing interests. Not only would greater structure serve to enhance the Court's efficiency and promote legal certainty, but it would also help to clarify the Court's subsidiary role in relation to national authorities when it comes to the protection of human rights. In bringing more structure to the Court's decision-making process, inspiration can be drawn from the debate regarding the balancing/categorization continuum to …

New Trends In Procedural Law: New Technologies And The Civil Litigation Process, Janet Walker, Garry D. Watson

UC Law SF International Law Review

This report for the International Association of Procedural Law examines the impact of new technologies on the litigation process in six countries: The United States, Australia, Israel, Singapore, England and Wales, and Canada. Drawing on national reports from each of these countries, it considers: how new technologies are re-shaping the ways that we record and store information in the litigation process; the ways that the participants in the process communicate with one another; and the ways in which the case record or file is developed. It also considers whether new technologies are making the litigation process more efficient, more accessible …

In The Spirit Of Ubuntur. Enforcing The Rights Of Orphans And Vulnerable Children Affected By Hiv/Aids In South Africa, John D. Bessler

UC Law SF International Law Review

The author discusses the traditional African concept of ubuntu, which is frequently cited in South African jurisprudence, and analyzes South Africa's violation of the human rights of orphans and vulnerable children affected by HIV/AIDS. South Africa's Constitution explicitly protects children's rights and various socio-economic rights of concern to children. The Constitutional Court of South Africa has held such rights to be justiciable, yet the rights of South African children have continually been violated. The author discusses how the existence of these rights may assist orphans and vulnerable children as well as those advocating on their behalf, and identifies legal strategies …

Implementing The Prohibition Of Torture On Three Levels: The United Nations, The Council Of Europe, And Germany, Joachim Herrmann

UC Law SF International Law Review

In the fight against terrorism the United States government has tried to draw a line between proper and improper methods of interrogation and treatment of detainees. The question whether and to what extent torture and other kinds of ill-treatment might be justified is widely discussed in the United States today. To date, no satisfying answer has been found. There is doubt that a generally accepted answer could ever be found. In view of this dilemma it might be helpful to look beyond the borders of the United States to see what answers have been given elsewhere. This paper will explain …

The Internationalization Of The American Journal Of International Law: Reality Or Chimera (A Survey), Christos Ravanides

UC Law SF International Law Review

In 2006 the American Society of International Law celebrated its centennial anniversary. In 2007 it is the turn of the Society's flagship publication, the American Journal of International Law, to celebrate its centennial volume. This first-of-its-kind detailed survey dissects the Journal's "international" attribute: how truly "international" and how "American" has this prestigious publication proved in the course of a century? How accommodating a host has it been to international lawyers with no U.S. affiliation or with 'deviating' views on international law? The research has been multi-fold; we examine the content, the structure and the thematology of the Journal, measuring foreign …

Less Privacy Please, We're British: Investigating Crime With Dna In The U.K. And The U.S., Duncan Carling

UC Law SF International Law Review

The United States and Great Britain are the world leaders in the use of DNA databases for criminal investigations, but the laws governing their use are evolving differently in each country. This note compares the American and British DNA database programs, and looks at two notable differences in practice: the collection of DNA samples from people who have been arrested but not convicted, and the technique of looking for an offender's relatives in the database. The note offers an explanation as to why the legislation is evolving differently, and argues that disparate cultural views on privacy are as much part …

The Transatlantic Divergence In Legal Thought: American Law And Economics Vs. German Doctrinalism, Kristoffel Grechenig, Martin Gelter

UC Law SF International Law Review

Economic analysis plays a major role in the American legal discourse, while its position in the German-speaking legal debate remains comparatively limited. In Germany and Austria, a widespread aversion against law and economics can be observed among legal scholars. This article advances an explanation for this divergence on the basis of two main factors. First, American legal realism enjoyed great success, whereas the German freelaw movement failed to leave a lasting impression. While legal realism transformed American legal thought and opened up the discourse to policy arguments, the predominant German legal theory emphasizes the internal coherence of the legal system, …

Shared Dilemmas: Justice For Rape Victims Under International Law And Protection For Rape Victims Seeking Asylum, Lindsay Peterson

UC Law SF International Law Review

Rape is prohibited in every major domestic legal system and has long been a violation of customary international law, yet it is rarely prosecuted in either context. It was not until the 1990s, when women became actively involved in the international community through lobbying and occupying leadership positions, that the idea of rape as a crime against honor was reevaluated and modified to recognize rape as a violent crime. However, rape victims are still denied justice in many cases under international law and are denied protection from their attackers under U.S. domestic asylum law. This paper will examine the successes …

Worldwide Corporate Convergence Within A Pluralistic Business Legal Order: Company Law And The Independent Director System In Contemporary China, Chi-Wei Huang

UC Law SF International Law Review

This article will introduce both the dominant corporate model and corporate ownership structure as well as the model for the most efficient corporate governance system under the New Pluralistic Business Legal Order, as promoted by the proponents of the theory of global convergence of corporate governance. The author discusses how this phenomenon impacts China's corporate governance system during its ongoing economic and legal reforms. The author identifies the path dependencies and other problems the Chinese corporate governance system has been encountering, and suggests measures to address these problems. The article concludes by exploring why the path dependencies are harder to …

Sixty Years In The Making: The Definition Of Aggression For The International Criminal Court, Keith A. Petty

UC Law SF International Law Review

The post-war trials of Axis, war criminals marked the last time that the crime of aggression was prosecuted. Today, the Special Working Group on the Crime of Aggression (SWG) is nearing agreement on a definition that will likely be adopted by the Assembly of States Parties to the International Criminal Court (ICC) - a prerequisite to the Court's exercise of jurisdiction over this, particular offense. In spite of decades of work, several key issues remain to be resolved before the definition is finalized. These include: The level of involvement of the Security Council in determining when a State commits aggressive …

Constitutional Changes, Transitional Justice, And Legitimacy: The Life And Death Of Argentina's "Amnesty" Laws, Jose Sebastian Elias

UC Law SF International Law Review

The article analyzes in-depth the legal and political process through which Argentina came, first, to grant amnesty to former military officers who took part in the repression during the last dictatorship (1976-1983) and then, to nullify those "amnesties" and indict the officers again eighteen years later. The thematic core is the legitimacy (or lack of it) of constitutional changes carried out by these unconventional means, which were the unavoidable consequence of the difficult process of transitional justice in Argentina.

Section I gives an overview of the most salient legal and political facts of the last twenty-five years and poses the …

International Law Versus The Preemptive Use Of Force: Racing To Confront The Specter Of A Nuclear Iran, Roxana Vatanparast

UC Law SF International Law Review

The United States claims that Iran's uranium enrichment program is for the purpose of creating nuclear weapons, and is thus in violation of the Treaty on the Non-proliferation of Nuclear Weapons. Although the question of whether Iran has, or will soon have, a nuclear weapon is still speculative, the U.S. is adamant that even if Iran does not currently have a nuclear weapon, it soon will, and all measures must be taken to prevent that from happening. This note analyzes whether the preemptive use of force in this context would meet traditional customary international law requirements as originally established in …

Recognition And Enforcement Of U.S. Punitive Damages Awards In Continental Europe: The Italian Supreme Court's Veto, Francesco Quarta

UC Law SF International Law Review

Once again, a European court denied the enforcement of a U.S. punitive damages award. Different actors, same outcome: punitive damages are deemed contrary to public policy in Europe, where the different national systems of civil liability do not seek punishment, but strict compensation. This article studies the developments of punitive damages within the United States, highlighting the anomalies that such doctrine carries with regard to both private and criminal law. Among the explicit goals of this study is the disclosure of the main (constitutional) hurdles which the Italian legal system poses to the judicial recognition of U.S. punitive damages awards. …

Fifteen Minutes Of Shame: The Growing Notoriety Of Grand Corruption, Mary Evans Webster

UC Law SF International Law Review

Today the international community is focused, like never before, on efforts to reduce corruption as an essential component of poverty eradication. Grand corruption is the payment of bribes in connection with major interactions such as large infrastructure projects or arms sales and the abuse of political power to extract and accumulate for private gain. In the last five years, the United Nations, the World Bank and the United States Agency for International Development have all launched aggressive new agendas to address the crime of grand corruption. But, these agendas are not without their shortcomings and ardent critics. This article explores …

Australian Shareholders Rejoice: Current Developments In Australian Corporate Litigation, Paul Von Nessen

UC Law SF International Law Review

This article considers recent Australian case law which will enhance the ability of Australian shareholders to pursue remedies against their companies for improper disclosure in relation to the acquisition of securities. The article further observes that, in contrast to the United States legal environment, actions which may be used to pursue such securities claims have been encouraged in Australia in recent years by the adoption of effective class action procedures and the relaxation of litigation funding rules.

The Right To A Dignified Life (Vida Digna): The Integration Of Economic And Social Rights With Civil And Political Rights In The Inter-American Human Rights System, Jo M. Pasqualucci

UC Law SF International Law Review

The Inter-American Court of Human Rights recently issued a series of controversial judgments in which it held States accountable for violations of the right to life, even when no one had died. The Court expanded the traditional scope of the right to life to include the right to live a "vida digna" or a dignified life. In doing so, the Court has introduced a qualitative aspect to the right to life. In certain circumstances in which vulnerable individuals or groups lacked basic necessities such as adequate food, water, sanitary facilities, and health care, the Court held that the State was …

Peacekeeping In Name Alone: Accountability For The United Nations In Haiti, Matt Halling, Blaine Bookey

UC Law SF International Law Review

The period from February 29, 2004 - the day democratically elected President Jean-Bertrand Aristide was forced to leave his country - to the present has marked a dark period for Haiti. Thousands of men, women and children have been murdered, raped, and unlawfully detained. Peacekeeping forces of the United Nations Stabilization Mission in Haiti ("MINUSTAH"), sent to Haiti in an effort to reinstall democracy, are directly responsible for scores of these human rights violations through direct action and willfully blind inaction. This report attempts to demonstrate the magnitude of human rights abuses that have occurred and continue to occur in …

Balancing, The Global And The Local Judicial Balancing As A Problematic Topic In Comparative (Constitutional) Law, Jacco Bomhoff

UC Law SF International Law Review

Courts in Europe, North America and elsewhere frequently use the language of "balancing" when dealing with fundamental rights cases. In addition, judges and scholars increasingly often rely on the image of balancing, or "weighing," to draw (self-)portraits of legal cultures and to frame contrasts and similarities between legal orders. This article argues that this form of discourse occupies a particularly problematic position as a topic of comparative constitutional law, and this for two primary reasons.

First, while balancing references, as legal arguments, function primarily to justify the exercise of judicial power in particular - local - settings, their legitimizing force …

Center For Gender & Refugee Studies: The Implementation Of The One-Year Bar To Asylum, Karen Musalo, Marcelle Rice

UC Law SF International Law Review

Commonly referred to as the "one-year bar to asylum," section 208 (a)(2)(B) of the Immigration and Nationality, 8 U.S.C. § 1158(a)(2)(B) was enacted by Congress as part of the Illegal Immigrant Reform and Immigrant Responsibility Act passed in 1996. The law requires an asylum applicant to apply within one year of arrival in the United States, subject to certain exceptions. Congress' goal in enacting this law was to prevent fraud while ensuring that the United States remained a safe haven for refugees fleeing persecution in their home countries.

Twelve years after the enactment of the one-year bar, CGRS' survey of …

Symptoms Of Trauma Among Political Asylum Applicants: Don't Be Fooled, Stuart L. Lustig

UC Law SF International Law Review

Post-traumatic stress disorder (PTSD) is a psychiatric condition which is common among political asylum applicants. Symptoms include nightmares, flashbacks, avoidance of reminders of the trauma, emotional numbness, and hypervigilance. Many of these symptoms can adversely affect applicants' credibility in the courtroom in the eyes of adjudicators unfamiliar with PTSD. Due to PTSD symptoms, applicants may appear unexpectedly calm while recounting details of torture and maltreatment, and their narratives may seem inconsistent. Conversely, adjudicators should be aware of normal activities and functions that are possible among applicants with PTSD. Cultural variations in demeanor, such as reluctance to discuss sexual trauma and …

Why France Needs To Collect Data On Racial Identity... In A French Way, David B. Oppenheimer

UC Law SF International Law Review

French constitutional law, which embraces equality as a founding principle, prohibits the state from collecting data about race, ethnicity or religion, and French culture is deeply averse to the legitimacy of racial identity. France is thus, in American parlance, officially "color-blind." But in France, as in the United States, the principle of color-blindness masks a deeply colorconscious society, in which race and ethnicity are closely linked to discrimination and disadvantage. French law, and Frenchincorporated European law, requires the state to prohibit discrimination, including indirect discrimination. But in the absence of racial identity data, it is difficult for the state to …

The Transformation Of International Comity, Joel R. Paul

Faculty Scholarship

No abstract provided.