Law Commons^™

A Legal Regime For The Mining Of Helium-3 On The Moon: U.S. Policy Options, Richard B. Bilder

Fordham International Law Journal

Absent an agreed international legal framework, attempts by the United States or any other nation or private entity to acquire and bring to Earth significant quantities of He-3 could give rise to controversy and conflict. Consequently, it seems timely to revisit the issue of the legal regime potentially applicable to exploiting He-3 and other lunar resources. Part I of this Article will briefly discuss the technical and economic prospects for the develop of He-3-based fusion energy. Part II lays out the present legal situation concerning the exploitation of lunar resources such as He-3. Part III analyzes whether it is prudent …

Nuclear Weapons And The Rule Of Law, Sergio Duarte

Fordham International Law Journal

No abstract provided.

Japan's New Criminal Jury Trial System: In Need Of More Transparency, More Access, And More Time, Matthew J. Wilson

Fordham International Law Journal

The lay judge system has considerable potential both in concept and form. To realize its full potential, the system needs to overcome various structural impediments and cultural challenges. This Article further contributes to the emerging discussion by detailing three related areas that merit attention and reform if the system is going to realize its full potential. Namely, the lay judge system would benefit from 1) increased transparency by eliminating punitive measures against citizen judges desiring to freely speak about the trial proceedings or deliberation process oncle the trial is complete; 2) impoved access to the interrogation of detained suspects and …

Who Is Making International Tax Policy?: International Organizations As Power Players In A High Stakes World, Diane Ring

Fordham International Law Journal

This Article begins the process of mapping the inquiry into the role of international organizations in tax policy. It identifies four basic questions that must be addressed and specifies the more sophisticated inquiries that must then be undertaken. This Article commences the empirical examination through two case studies: one regarding inclusion of a mandatory arbitration clause in the Organization for Economic Co-Operation and Development (“OECD”) Model Tax Convention on Income and Capital, and one regarding recent international efforts to curb “harmful” tax competition. Part I outlines the rising importance of international tax matters and the reasons that international organizations are …

Federalism And The Rule Of Law: Perspectives From The European Court Of Justice, Koen Lenaerts

Fordham International Law Journal

This Article unfolds as follows: Section I looks at the "pervasive effect" of European Union ("EU") law upon the substantive law of the Member States. Instead of attempting to cover all cases where this effect has arisen, a selective but in-depth approach is preferred. In this regard, four areas falling within the competences of the Member States will be discussed, namely education, family law, direct taxation, and health care. Section II is devoted to the pervasive effects of EU law upon national rules of procedure. Taking four cases as examples, this Section sets out to demonstrate that the European Court …

If At First You Don't Succeed: Vote, Vote Again: Analyzing The Second Referendum Phenomenon In Eu Treaty Change, Gráinne De Búrca

Fordham International Law Journal

The aim of this Essay is to probe the causes of the European Union's ("EU") second-referendum practice with a view to better understand what strikes many observers as a procedurally bizarre and democratically dubious exercise. It is not the intention of this Essay to offer any justification for the practice, but rather to explain the factors specific to the EU which have contributed to its recurrence.

Revisiting Free Movement Of Workers, Robin C. A. White

Fordham International Law Journal

This Essay examines aspects of the free movement of workers and the issues concerning the content and impact of the introduction of citizenship of the European Union ("EU" or "Union"). This Essay draws from seven years of opinions from Advocate General Slynn, which were written during a highly formative period in the development of Community law. Defining who is a worker and examining the benefits of having and retaining this worker status remain as important today as they were in the late 1980s, when relevant seminal case law of the Court of Justice was established. In many of those cases, …

Child Support And (In) Ability To Pay: The Case For The Cost Shares Model, Pamela Foohey

Scholarly Works

Currently enacted child support guidelines primarily focus on maintaining children's economic well-being when a single household is split into two. This article argues that this focus discounts another consideration which, when combined with the current analysis, could further advance children's well-being: the ability of parents to pay. An analysis of payment characteristics demonstrates that lower child support obligations may increase the amount of child support paid on average. Lowering presumptive obligations will make lower-income parents better able and more likely to pay their obligations, thereby increasing the amount of child support paid to lower-income children, while at most only marginally …

The President's Welcome Address The President's Welcome Address (2008 Intercultural Human Rights Law Review Symposium), Franklyn M. Casale

Intercultural Human Rights Law Review

Rev. Monsignor Franklyn M. Casale's welcome address for the 2008 Intercultural Human Rights Law Review Annual Symposium.

Sanctions And International Law (Keynote Address), W. Michael Reisman

Intercultural Human Rights Law Review

Keynote Address by W. Michael Reisman, Myres S. McDougal Professor of International Law at Yale Law School, for the 2008 Intercultural Human Rights Law Review Annual Symposium.

Human Rights: The Crises Today, Ileana Ros-Lehtinen

Intercultural Human Rights Law Review

Keynote Dinner Address by Ileana Ros-Lehtinen, Ranking Member of U.S. House of Representatives' Committee on Foreign Affairs, for the Intercultural Human Rights Law Review Annual Symposium.

International Legal Instrument On Human Trafficking And A Victim-Oriented Approach: Which Gaps Are To Be Filled, Federico Lenzerini

Intercultural Human Rights Law Review

The present contribution will first provide a description of the evolution of the international anti-trafficking legal action, with particular attention to the specific provisions aimed at ensuring victim protection. This article will attempt to explore which possible improvements could be adopted in order to make such an action more effective in the light of the contemporary characterization of the awful practice of trafficking in human beings.

Why Civil Liability For Disclosure Violations When Issuers Do Not Trade?, Merritt B. Fox

Faculty Scholarship

Civil damages liability for securities law periodic disclosure violations has come under attack, particularly fraud-on-the-market class-action lawsuits for investor losses incurred in connection with trading in the secondary market when the issuer has not sold shares. The main line of attack has been the weakness of the compensatory rationale for such suits. Without a compensatory justification, the attackers suggest, the availability of this cause of action is hard to defend given the very substantial use of social resources involved in the litigation that it generates. The critics are right concerning the weakness of the compensatory justification for civil liability. They …

The Effects Of Asymmetric Vs. Symmetric Probability Of Targets Following Probe And Irrelevant Stimuli In The Complex Trial Protocol For Detection Of Concealed Information With P300, J. Peter Rosenfeld, Monica Tang, John B. Meixner Jr., Michael Winograd, Elena Labkovsky

Scholarly Works

The complex trial protocol (CTP, [J.P. Rosenfeld, E. Labkovsky, M. Winograd, M.A. Lui, C. Vandenboom & E. Chedid (2008), The complex trial protocol (CTP): a new, countermeasure-resistant, accurate P300-based method for detection of concealed information. Psychophysiology, 45, 906–919.]) is a sensitive, new, countermeasure-resistant, P300-based concealed information protocol in which a first stimulus (Probe or Irrelevant) is followed after about 1.4–1.8 s by a Target or Non-Target second stimulus within one trial. It has been previously run with a potentially confounding asymmetric conditional probability of Targets following Probes vs. Irrelevants. This present study compared asymmetric vs. symmetric conditional probability groups and …

Assigned Versus Random Countermeasure-Like Responses In The P300-Based Complex Trial Protocol For Detection Of Deception: Task Demand Effects, John B. Meixner Jr., Alexander Haynes, Michael Winograd, Jordan Brown, J. Peter Rosenfeld

Scholarly Works

The Concealed Information Test (CIT) is a credibility assessment protocol of an entirely different nature than the traditional lie detector test. Instead of attempting to detect actual lying (the goal of the commonly used Control Question Test), the goal of the CIT is to determine whether an individual possesses knowledge of specific details of a crime or event. For example, if a murder was committed at 800 Church Avenue using a .38 caliber revolver, the CIT seeks to determine whether a suspect recognizes the address and type of weapon.

The CIT presents subjects with various stimuli, one of which is …

Section 8(F) Prehire Agreements And The Exception To Majority Representation: Are Construction Workers Getting The Shaft?, Desiree Leclercq

Scholarly Works

Congress has neglected the federal labor rights of construction workers for half a century. Back in 1959, Congress addressed the needs of construction workers and attempted to ensure that those workers, who were hired by construction employers for erratic and short periods of time, retained the right to organize in unions. To that end, Congress added section 8(f) to the National Labor Relations Act ("NLRA"), authorizing construction employers and unions to enter voluntarily into prehire collective bargaining agreements covering construction workers. Additionally, Congress included a proviso permitting employers to require, as a condition of employment, that their employees join the …

Procedural Adequacy, Elizabeth Chamblee Burch

Scholarly Works

This short piece responds to Jay Tidmarsh’s article, Rethinking Adequacy of Representation, 87 Texas Law Review 1137 (2009). I explore Professor Tidmarsh’s proposed “do no harm” approach to adequate representation in class actions from a procedural legitimacy perspective. I begin by considering the assumption underlying his alternative, namely that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus and we must therefore tailor the adequacy requirement to curb self-interest only in so far as it makes class members worse off than they would be with individual litigation. Adopting the “do no harm” …

Procedural Justice In Nonclass Aggregation, Elizabeth Chamblee Burch

Scholarly Works

Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions. Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards. When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights. This Article thus takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the …

The Case Against The Arbitration Fairness Act, Peter B. Rutledge

Scholarly Works

The Arbitration Fairness Act is a well-intended but ultimately misguided attempt to address a system of dispute resolution that has largely worked well. The bill currently being considered by Congress rests on a series of flawed empirical premises. This article addresses three. First, though the bill posits that arbitration leaves consumers and employees worse off, data demonstrate individuals overall are often better off under a system with enforceable predispute arbitration agreements than a system without them. Second, although the bill promises improved access to justice, the proposal actually erects more impediments. Third, though the bill suggests that postdispute arbitration will …

Scott V. Harris And The Role Of The Jury In Constitutional Litigation, Michael Wells

Scholarly Works

Suits brought under 42 U.S.C. section 1983 to recover damages for excessive force by the police bear some resemblance to common law tort litigation, since the key Fourth Amendment issue is whether the force was 'unreasonable.' In ordinary negligence law the jury typically decides whether an actor has exercised reasonable care, even when there is no dispute as to the facts. In section 1983 litigation the federal courts are badly split on the allocation of decision making between judge and jury, sometimes even within a particular circuit. The Supreme Court recently faced the judge-jury issue in Scott v. Harris, where …

A Litigation-Oriented Approach To Teaching Federal Courts, Michael Wells

Scholarly Works

The traditional focus of the course on Federal Courts has been the study of highly abstract principles of separation of powers and federalism. This paper argues that most students are better served by a course that focuses on what lawyers need to know in order to litigate issues regarding the types of disputes federal courts may address and the division of authority between federal and state courts. With that aim in mind, the paper suggests that the course should focus largely on the opportunities and obstacles faced by lawyers seeking to advance federal constitutional or statutory claims in the federal …

Shareholder Bylaws And The Delaware Corporation, Christopher M. Bruner

Scholarly Works

Much like hostile tender offers in the 1980s and 1990s, shareholder bylaws purporting to limit board authority in key areas of corporate governance are, once again, forcing Delaware's courts to grapple with the fundamental nature of the corporate form.

In this (short) essay written for a roundtable discussion at the 2009 Annual Meeting of the Southeastern Association of Law Schools, I discuss CA, Inc. v. AFSCME Employees Pension Plan - the 2008 opinion in which the Delaware Supreme Court began to define the nature and scope of the shareholders' bylaw authority. In CA, Inc. the court held that a proposed …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

The United States Court of Appeals for the Eleventh Circuit decided cases in 2008 that addressed the scope of agency discretion in several contexts. In an issue of first impression under the Clean Air Act (CAA), the court held that the Environmental Protection Agency (EPA) properly exercised its discretion in not objecting to the issuance of an operating permit to a power company that the agency had earlier formally accused of violating the CAA. In another case, the court held that the Federal Emergency Management Agency had the discretion to protect endangered species while administering the National Flood Insurance Act …

From Loyalty To Conflict: Addressing Fiduciary Duty At The Officer Level, Usha Rodrigues

Scholarly Works

Conflicts of interest are the quintessential agency cost-the constant, lurking danger that agents may seek their own personal gain, rather than the good of the corporation. Yet many corporate employees lack knowledge as to exactly what constitutes a conflict of interest. This ignorance facilitated the kind of fraud seen in Enron, WorldCom, and the options backdating scandals, and may help explain the out-sized payouts that many high-level corporate officers received even as the financial institutions they headed verged on self-destruction. Each case required not only affirmative fraudulent behavior on the part of a few, but also the tacit acceptance of …

Gonzales, Casey And The Viability Rule, Randy Beck

Scholarly Works

Gonzales v. Carhart upheld a federal ban on intact D&E abortions. The dissenters in Gonzales accused the majority of ignoring the rule that a state may only prohibit abortion of a viable fetus, one capable of life outside the womb. The continuing discord over the viability rule highlights an issue that remains unsettled 34 years after Roe: Why may a state protect the life of a fetus after it reaches viability, but not before? Professor John Hart Ely long ago noted Roe's failure to justify the viability rule, observing that the Court's defense seems to mistake a definition for a …

The Burden Of Knowledge, Christian Turner

Scholarly Works

Sometimes we are better off not knowing things. While we often hear that "ignorance is bliss," there has not been a comprehensive consideration in the legal academy of the virtues of ignorance and its regulation. Though the distribution of knowledge, like the distribution of other goods, is affected both directly and indirectly by law, several characteristics of knowledge distinguish it from other kinds of property. Much has been written about the impact of the nonrival and nonexclusive nature of knowledge on its production and distribution. This Article centers around two other attributes of knowledge that combine to create a special …

The Supreme Courts Municipal Bond Decision And The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

Does it violate the dormant Commerce Clause for a state to exempt interest earned on its own bonds, but no others, from income taxation? In a recent decision, the Supreme Court answered this question in the negative. Six members of the Court found the case controlled by the state-self-promotion exception to the dormancy doctrine's antidiscrimination rule. Three of those Justices, however, went further by also invoking the longstanding market-participant exception to sustain the discriminatory state tax break. This Essay challenges that alternative line of analysis. According to the author, the plurality's effort to apply the market-participant principle: (1) invites a …

Can International Law Work? A Constructivist Expansion, Harlan G. Cohen

Scholarly Works

An increasing number of scholars have begun to apply rational choice methodologies to the study of international law. Earlier rational choice scholarship voicing skepticism about international law’s true force has since been followed by sophisticated rational choice defenses of international law. This review essay focuses on Andrew Guzman’s recent book HOW INTERNATIONAL LAW WORKS: A RATIONAL CHOICE THEORY (2008), one of the best of those defenses. In that book, Guzman develops an elegant and sophisticated account of 'reputation' and the role it can play in encouraging rational compliance with international law. Based on this account, Guzman makes a powerful case …

International Common Law: The Soft Law Of International Tribunals, Timothy L. Meyer, Andrew T. Guzman

Scholarly Works

Rising legalization in the international community has lead to greater use of international tribunals and soft law. This paper explores the intersection of these instruments. The decision of an international tribunal interprets binding legal obligations but is not itself legally binding except, in some instances, as between the parties. The broader, and often more important function of a tribunal's decision - its influence on state behavior beyond the particular case and its impact on perceptions regarding legal obligations - is best characterized as a form of soft law.

Despite its inability to bind states, a tribunal can influence state behavior …

Paging King Solomon: Towards Allowing Parents To Donate Organs Of Anencephalic Infants, Fazal Khan, Brian Lea

Scholarly Works

In October of 1987, Canadian doctors artificially sustained the life of an anencephalic infant so that her organs could be transplanted into another child, touching off a fiery debate. At the request of her parents, doctors connected Baby Gabrielle, who was born missing most of her brain, to a respirator before flying her to Loma Linda, California, where her heart was transplanted into the world's youngest recipient of a heart transplant. While Baby Gabrielle's parents insisted that their daughter's organs be used in this manner and were presumably happy with the resulting transplant, one of Baby Gabrielle's doctors expressed qualms …