Law Commons^™

The Faults In "Fair" Trials: An Evaluation Of Regulation 55 At The International Criminal Court, Margaux Dastugue

Vanderbilt Journal of Transnational Law

Despite its reputation as a "provision of an exceptional nature," Regulation 55 has become one of the most contested procedural devices employed by the judges at the International Criminal Court (ICC). Hailing from civil law tradition, Regulation 55 permits the ICC to modify the charges against an accused at any time--either during or after the trial--if the judiciary decides it cannot convict the accused on the original charges. This use of Regulation 55 in three of the ICC's seven trials has demonstrated that the ICC cannot effectively safeguard a defendant's fundamental trial rights: the right to be informed of charges, …

Confused, Frustrated, And Exhausted: Solving The U.S. Digital First Sale Doctrine Problem Through The International Lens, Alandis K. Brassel

Vanderbilt Journal of Transnational Law

Users worldwide enjoy digital goods such as music and e-books on a daily basis. They have become a major part of people's lives, with uses ranging from lighthearted entertainment to serious educational pursuits. In many cases, convenience and affordability make digital goods more preferable than their analog counterparts. However, users often cannot use digital goods as freely as they would analog goods. Courts, legislation, and businesses prohibit those users, accustomed to reselling unwanted hard-copy books or vinyl records, from reselling digital books and music. This confuses users as to what they can actually do with their digital goods. This Note …

Reducing The Price Of Peace: The Human Rights Responsibilities Of Third-Party Facilitators, Michal Saliternik

Vanderbilt Journal of Transnational Law

Peace agreements can bring about serious injustices. For example, they may establish oppressive regimes, provide for the transfer of populations, or allocate natural resources in an inequitable manner. This Article argues that third-party facilitators--states and international organizations that act as mediators, donors, or peacekeepers--should have a responsibility to prevent such injustices. While the primary duty to ensure the justice of peace agreements resides with the governments that negotiate and sign them, directing regulation efforts only at those governments may prove insufficient in protecting human rights under the politically constrained circumstances of peacemaking. It is therefore necessary to complement the primary …

Who Speaks For The Fish? The Tragedy Of Europe's Common Fisheries Policy, Emily Self

Vanderbilt Journal of Transnational Law

The Common Fisheries Policy, enacted in 1983 as the European Union's primary overfishing regulation scheme, is widely regarded as a failure. Vast over exploitation in Europe's fisheries persists thirty years later, posing grave ecological consequences as well as economic devastation to Europe's fishing industry. In 2013, the EU overhauled the Common Fisheries Policy and enacted measures that oblige the EU and member states to support ecologically sustainable fishing practices, ban the harmful practice of discarding fish at sea, and give the member states more flexibility to tailor implementation to suit local conditions. While the 2013 reforms were momentous, those changes …

Predictive Due Process And The International Criminal Court, Samuel C. Birnbaum

Vanderbilt Journal of Transnational Law

The International Criminal Court (ICC) operates under a regime of complementarity: a domestic state prosecution of a defendant charged before the ICC bars the Court from hearing the case unless the state is unable or unwilling to prosecute the accused. For years, scholars have debated the role of due process considerations in complementarity. Can a state that has failed to provide the accused with adequate due process protections nonetheless bar a parallel ICC prosecution? One popular view, first expressed by Professor Kevin Jon Heller, holds that due process considerations do not factor into complementarity and the ICC could be forced …

International Organizations And Customary International Law, Sir Michael Wood

Vanderbilt Journal of Transnational Law

My subject today is "International Organizations and Customary International Law"--that is, the role of international organizations in relation to the formation and determination of rules of customary international law. Charney devoted a good part of his well-known article on "Universal International Law" to what he termed "contemporary international law-making." By that, he meant chiefly law-making within "international forums"--that is, within organs of international organizations and at international conferences. He starts the discussion from the somewhat heretical position that

"[w]hile customary law is still created in the traditional way, that process has increasingly given way in recent years to a more …

The Future Of Sharia Law In American Arbitration, Erin Sisson

Vanderbilt Journal of Transnational Law

A rising tide of Islamophobia in the United States has led, in recent years, to state-level efforts to prohibit the application of Sharia law in American courts. While these bans have been largely unsuccessful as legislation--the U.S. Tenth Circuit Court of Appeals has even declared one such ban unconstitutional--the growing uneasiness among Americans regarding the application of Sharia law persists. Similar tensions have been addressed in Canada and the United Kingdom through reform of the application of Sharia law in alternative dispute resolution (ADR) mechanisms. By taking a critical look at the American ADR system through the lens of Canadian …

Judges As Guardian Angels: The German Practice Of Hints And Feedback, Robert W. Emerson

Vanderbilt Journal of Transnational Law

The German practice of Richterliche Hinweispflicht is a judicial duty to give hints and feedback. In a very proactive position, the German judge asks questions of the parties designed to clarify and sharpen the key facts and issues and to give the parties a chance to correct matters that may be grounds for disposition. German judges also must ensure that the parties understand all matters that could affect the outcome of the case. In effect, the German judge's roles may be viewed as civil servant, teacher, and activist, rather than as umpire and overseer, as in the United States.

American …

Female Genital Mutilation And Designer Vaginas In Britain: Crafting An Effective Legal And Policy Framework, Lisa R. Avalos

Vanderbilt Journal of Transnational Law

The prevalence of female genital mutilation (FGM) in Britain and Europe has grown in recent years as a result of international migration, and European institutions have grown increasingly concerned with eradicating the practice. According to the European Parliament, approximately 500,000 girls and women living in Europe have undergone FGM and are suffering with the lifelong consequences of the procedure, and more than 30,000 girls in Britain are thought to be at risk of future FGM. Although Britain strengthened its law against FGM in 2003, the number of girls at risk continues to grow, and there have been no convictions for …

Challenges For "Affected States" In Accepting International Disaster Aid: Lessons From Hurricane Katrina, E. Katchka

Vanderbilt Journal of Transnational Law

The International Law Commission (ILC) draft articles on the protection of persons in the event of disasters purport to "facilitate an adequate and effective response to disasters that meets the essential needs of the persons concerned, with respect to their full rights" by setting forth complementary principles governing both individual state responsibilities and international cooperation in disaster response. The principles presented in the draft articles reflect an application of established international law principles as well as current, practical challenges to coordinating international disaster cooperation. This article applies specific ILC draft articles targeting the role of the state impacted by a …

Beyond Voluntary Corporate Social Responsibility: Corporate Human Rights Obligations To Prevent Disasters And To Provide Temporary Emergency Relief, Anastasia Telesetsky

Vanderbilt Journal of Transnational Law

Much of the focus of the emerging field of International Disaster Law is on state responsibility. Yet the source of some disasters is the failure of corporations to address known risks created by a company or located on company property. This Article queries whether there are obligations for corporations to act under international human rights law to prevent disasters where corporations have control over known hazards such as tailings dams or chemical dumps. This Article concludes that corporations have a legal duty to act in order to support and protect human rights whenever there is corporate knowledge of hazards that …

Attribution Of Conduct And Liability Issues Arising From International Disaster Relief Missions: Theoretical And Pragmatic Approaches To Guaranteeing Accountability, Giulio Bartolini

Vanderbilt Journal of Transnational Law

This Article analyzes legal issues related to harmful activities of international disaster relief personnel, focusing on two distinct issues. On the one hand, the analysis centers on internationally wrongful acts carried out by relief personnel and uncertainties related to the attribution of conduct, due to the array of actors involved in such missions. Such an examination will be carried out through the lens of draft articles adopted by the International Law Commission on the responsibility of states and international organizations where some non-exhaustive references are made to such scenarios. On the other hand, the Article focuses on liability issues that …

Nuclear Power, Risk, And Retroactivity, Emily Hammond

Vanderbilt Journal of Transnational Law

The 2011 Fukushima nuclear disaster presented a familiar scenario from a risk perception standpoint. It combined a classic" dread risk" (radioactivity), a punctuating event (the disaster itself), and resultant stigmatization (involving world wide repercussions for nuclear power). Some nuclear nations curtailed nuclear power generation, and decades-old opposition to nuclear power found a renaissance. In these circumstances, risk theory predicts a regulatory knee-jerk response, potentially resulting in inefficient overregulation. But it also suggests procedural palliatives that conveniently overlap with administrative law values, making room for the engagement of the full spectrum of stakeholders. This Article sketches the U.S. regulatory response to …

Fukushima's Shadow, Lincoln L. Davies, Alexis Jones

Vanderbilt Journal of Transnational Law

The March 11, 2011 tragedy at the Fukushima Daiichi power station in Japan immediately etched its place in history as arguably the most noteworthy of the three nuclear energy disasters to date. This Article surveys the response to Fukushima both in Japan and worldwide. It observes that rather than stopping what many thought was a burgeoning "nuclear renaissance," the global policy reaction post-Fukushima was more varied. Using the examples of Germany, the United States, and China, the Article examines the three general approaches to nuclear energy that nations have followed since Fukushima: abandonment, status quo, and expansion. The Article then …

The Democratization Of Energy, Joseph P. Tomain

Vanderbilt Journal of Transnational Law

The electricity industry is changing in dramatic ways. Most significantly, as demonstrated by the Obama Administration's Clean Power Plan, the country is witnessing the merger of energy and environmental regulation. Historically, energy regulation was driven by the need to produce more power for economic growth. By contrast, environmental regulation attended to the pollution of the environment. Production of energy depends upon the use of natural resources, and throughout the fuel cycle from extraction and transportation to the burning and disposal of those resources, the environment is directly affected. Most dramatically, greenhouse gas emissions present climate change challenges. In order to …

Illegally Evading Attribution? Russia's Use Of Unmarked Troops In Crimea And International Humanitarian Law, Ines Gillich

Vanderbilt Journal of Transnational Law

The Crimean Crisis of February and March 2014 poses several questions to International Law. This Article explores one of them: Does the use of unmarked troops, soldiers in uniforms but without nationality insignia, in Crimea violate principles of International Humanitarian Law (IHL)?

This Article first provides a brief summary of Crimea's history and the facts of the 2014 Crimean Crisis. It will be argued that IHL is applicable to the events in Crimea in February and March 2014 since the unmarked soldiers are attributable to Russia--either as Russian nationals or through Russia's exercise of control over them--and that there was …

Beyond Known Worlds: Climate Change Governance By Arbitral Tribunals?, Valentina Vadi

Vanderbilt Journal of Transnational Law

Can economic development and the fight against climate change be integrated successfully? What role, if any, does international investment law play in global climate governance? Can foreign direct investments (FDI) be tools in the struggle against climate change? What types of claims have foreign investors brought with regard to climate change--related regulatory measures before investment treaty arbitral tribunals? This Article examines the specific question as to whether foreign direct investments can mitigate and/or aggravate climate change. The interplay between climate change and foreign direct investments is largely underexplored and in need of systematization. To map this nexus, this Article proceeds …

If You Can't Beat Them, Join Them: The U.S. Solution To The Issue Of Corporate Inversions, Scott Deangelis

Vanderbilt Journal of Transnational Law

There is an old proverb, "If you can't beat them, join them, "that suggests that those who cannot win against some group should stop fighting and instead band together with them. It seems clear that when it comes to corporate inversions, the United States cannot win. Instead, countries overseas have taken advantage of tax break schemes to lure multinational companies away from the United States. This Note suggests that to prevent further foreign inversions, the United States should join these foreign countries in two ways. First, the United States should put its support behind the OECD's plan of a multilateral …

Demystifying Employment Authorization And Prosecutorial Discretion In Immigration Cases, Shoba S. Wadhia

Faculty Scholarship

On November 20, 2014, President Barack Obama announced a series of immigration programs aimed to reform the immigration system. Deferred Action for Parents of Americans or Lawful Permanent Residents (DAPA) and extended Deferred Action for Childhood Arrivals (DACA) represent two such programs announced by the President. Both programs extend deferred action (one form of prosecutorial discretion) to qualifying individuals. Deferred action has been part of the immigration system for more than 50 years, and has been named explicitly by Congress, federal courts, and the agencies responsible for administering immigration laws. Additionally, regulations list deferred action as one basis for work …

Structural Tax Exceptionalism, James M. Puckett

Faculty Scholarship

This Article argues that it is misleading to declare the death of tax exceptionalism and that structural tax exceptionalism may have important benefits. Part II provides a brief historical overview of the rise of federal agency administration of statutes and especially tax laws. The history trends to detract from anti-tax and anti-agency rhetoric that counsel disempowering the Treasury Department and other administrative agencies from comprehensively enforcing laws and making policy in their relevant domains. Part III analyzes how the Code's structure for tax administration differs from the APA template for administrative agencies. Part IV deconstructs these differences, drawing from general …

A Window Into The Soul Of International Arbitration: Arbitrator Selection, Transparency And Stakeholder Interests, Catherine A. Rogers

Faculty Scholarship

New Zealand Law Foundation International Dispute Resolution Lecture 2013, delivered at Stone Lecture Theatre, University of Auckland Faculty of Law, 26 November 2013. This essay derives from that lecture, which considers the important issue of arbitrator selection, appointment and challenge standards and procedures, and introduces the Arbitrator Intelligence project - a proposed solution for informational asymmetries that can affect the fairness of arbitrator selection and appointment.

Do Conservative Justices Favor Wall Street: Ideology And The Supreme Court's Securities Regulation Decisions, Marco Ventoruzzo, Johannes W. Fedderke

Faculty Scholarship

The appointment of Supreme Court justices is a politically-charged process and the "ideology" (or "judicial philosophy") of the nominees is perceived as playing a potentially relevant role in their future decision-making. It is fairly easy to intuit that ideology somehow enters the analysis with respect to politically divisive issues such as abortion and procreative rights, sexual conduct, freedom of speech, separation of church and state, gun control, procedural protections for the accused in criminal cases, governmental powers. Many studies have tackled the question of the relevance of the ideology of the justices or appellate judges on these issues, often finding …

The Price Of Paid Prioritization: The International And Domestic Consequences Of The Failure To Protect Net Neutrality In The United States, Arturo J. Carrillo, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

This article examines the international trade and human rights obligations of the United States as they relate to net neutrality to determine the extent to which the approach adopted by the Federal Communications Commission (FCC) in 2015 to promote an open Internet complies with those obligations. In March of that year, the FCC adopted new rules to promote and protect an open Internet that, inter alia, reclassified broadband providers as common carriers subject to nondiscrimination obligations and codified strong net neutrality protections. The authors argue that the 2015 FCC Order, contrary to its predecessors, largely meets the requirements of the …

Book Review: Casting Off The Canon: Family Law Reimagined, Laurie S. Kohn

GW Law Faculty Publications & Other Works

Jill Hasday's book, Family Law Reimagined, offers a clear-eyed vision of what family law is, what it is not, and where it might be headed. Hasday considers family law's canon-the set of principles by which we have come to characterize family law-and then debunks the canon by methodically setting forth each notion and illustrating its inaccuracies or limitations. In doing so, Hasday urges the reader to clear the noise of the canon and to see the law in all its messy inconsistencies and shortcomings.

Applying Patent-Eligible Subject Matter Restrictions, Jonas Anderson

Utah Law Faculty Scholarship

The US Supreme Court’s difficulty in promulgating a standard for patent-eligibility has not gone unnoticed in the academy. Hundreds of academic conferences, including this one, have been devoted to the topic. The goal of this Article is not to solve the seemingly intractable problem of patent-eligibility doctrine. The goal of this Article is rather more modest. Instead of normatively assessing patent-eligible subject matter doctrine, this Article seeks to identify which foundational theories of patent-eligible subject matter can most readily be applied by courts and the US Patent and Trademark Office via Section 101. In doing so, this Article categorizes the …

A Description Analysis Of Disciplinary Cases Of Law Enforcement Officers In The State Of Florida Over A Ten-Year Period, Brian V. Frank

Graduate Student Dissertations, Theses, Capstones, and Portfolios

A distrust of government is as old as the country itself. Police officers hold a great deal of power, as they have the ability to take the one thing the American people hold sacred: freedom. Ethical violations by police officers enrage the public and cause great concern for law enforcement administrators. Past research has focused on the individual aspects within law enforcement along with criminological and sociological theories. The most recent research in law enforcement ethics shows fragmentation and a lack of standardization within the areas of screening, training, and managing for integrity. According to the Bureau of Justice Statistics, …

Understanding State Constitutions: Locke And Key, Gary S. Lawson

Faculty Scholarship

Steve Calabresi and Sofia Vickery have done a great service by uncovering the pre-Fourteenth Amendment case law in state courts interpreting and applying state constitutional provisions which contain "Lockean" language guaranteeing rights to life, liberty, property, safety, happiness, or some combination of those rights.' These cases are manifestly one of the keys to understanding the legal world in which the Fourteenth Amendment was crafted and ratified. It is instructive and fascinating to see the development and application of these Lockean provisions, whose influence 2 seems to have spread beyond this country. It is a pleasure and honor to be asked …

The Substance Of Self-Government, James E. Fleming

Faculty Scholarship

In Democratic Rights: The Substance of Self-Government, Corey Brettschneider develops an attractive and powerful conception of self-government - the value theory of democracy - that encompasses both substantive rights like privacy and procedural rights. Although he argues, following Habermas and Rawls, that substantive rights and procedural rights are "co-original," the structure of his theory may lead him to reduce the former into the latter and not fully to account for personal self-government in his conception of democratic self-government. The wages of his democratic justifications for substantive rights may be a surprising anxiety or unwarranted tension concerning judicial review protecting such …

Surveillance As Loss Of Obscurity, Woodrow Hartzog, Evan Selinger

Faculty Scholarship

Everyone seems concerned about government surveillance, yet we have a hard time agreeing when and why it is a problem and what we should do about it. When is surveillance in public unjustified? Does metadata raise privacy concerns? Should encrypted devices have a backdoor for law enforcement officials? Despite increased attention, surveillance jurisprudence and theory still struggle for coherence. A common thread for modern surveillance problems has been difficult to find.

In this article we argue that the concept of ‘obscurity,’ which deals with the transaction costs involved in finding or understanding information, is the key to understanding and uniting …

Marbury Moments, Steven Arrigg Koh

Faculty Scholarship

Every court has its Marbury moment. To support this argument, this Article reviews seminal cases from three types of courts: U.S. federal, regional, and international. This Article concludes that Marbury moments provide novel insights about both Marbury v. Madison itself and the nature of domestic and international courts.