Law Commons^™

The Roots Of Rights: Where Do Courts Find Constitutional Support For A Woman’S Right To Choose Or A Fetal Right To Life?, Kathleen M. Mcgean

Georgia Journal of International & Comparative Law

No abstract provided.

The Concept Of “Investment” At The Dawn Of The Digital Era, Dmitry A. Pentsov

Georgia Journal of International & Comparative Law

New methods of doing international business, which have appeared in the process of digital transformation of economic and social life, have not gone unnoticed by a number of States that use tax and administrative methods to regulate them. One possible way to protect the interests of operators of digital business models from such regulation could be bringing claims against these States on the basis of bilateral and multilateral treaties for the promotion and protection of investments. Among the mandatory conditions for the presentation of such claims is the presence in the territory of a host State of protected “investments” within …

Conflict Resolution Procedures Within The Courtroom: Between The Adversarial And Inquisitorial Traditions, Amos Gabrieli, Michal Alberstein

Georgia Journal of International & Comparative Law

Modern courts have evolved around two central legal traditions—the adversarial and the inquisitorial. The two traditions have historically reflected different approaches towards consent and authority or towards conflict resolution and strict application of the law. Yet with the blurring of boundaries between the two legal traditions, and alongside various reforms in adversarial and inquisitorial legal systems, new practices of judicial conflict resolution within the courtroom have developed. This Article will compare the two legal traditions and examine the assimilation of ideologies and procedures typical to conflict resolution processes into the work of judges, as they strive to end civil legal …

Tortious Liability In China’S Motorsports Industry, Hui Jing, Chen Gengzhao, Sun Bing

Georgia Journal of International & Comparative Law

In 2020, the Chinese Civil Code came into effect. Article 1176 of the code offers a statutory defense for those participating in “a recreational or sports activity carrying certain risk” when they cause injury to other participants. However, the Chinese Civil Code does not specify how or to what extent Article 1176 may be relied upon as a statutory defense in assessing the tortious liability of the organizers of such recreational or sports activities. The courts in China have long sought to develop a principled approach to applying the voluntary assumption of risk defense to such organizers. This Article provides …

Attributing Criminal Responsibility For The Crime Of Aggression, Nikola R. Hajdin

Georgia Journal of International & Comparative Law

To hold a person criminally responsible, the prosecution must prove that his conduct violated (without justification) a prohibitory norm of the criminal code and that he is culpable for such wrongdoing. In international criminal law, wrongfulness and culpability are assessed through the prisms of material (actus reus) and mental (mens rea) elements, respectively. Also called “objective attribution,” ascribing wrongfulness requires a causal link between individual conduct and criminal consequences. Attributing culpability, or “subjective attribution,” on the other hand, consists of establishing mental links between the perpetrator and the occurrence he has caused and the situation in which such an event …

Table Of Contents, Masthead, And Dedication, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

State Of Utah, Plaintiff /Respondent Vs. Elbert John Pule, Defendant /Petitioner : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

On Writ of Certiorari to the Utah Court of Appeals

DOUGLAS J. THOMPSON, JENNIFER FORESTA, Counsel for Petitioner

DAVID A. SIMPSON, SEAN D. REYES, TIMOTHY TAYLOR, BRIAN MILLER, Counsel for Respondent

Do All Dogs Go To Heaven? How Our Secular Culture Views Death, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

The Great American Word Purge, Jethro K. Lieberman

Other Publications

No abstract provided.

Forced Justice: The Kosovo Specialist Chambers, Sara L. Ochs, Kirbi Walters

Duke Journal of Comparative & International Law

The Kosovo Specialist Chambers (KSC), the court created to adjudicate war crimes and crimes against humanity committed in Kosovo at the turn of the century, is the world’s newest hybrid tribunal. The KSC is classified as a hybrid tribunal because it ostensibly blends aspects of international and domestic law and resources. Upon examination, however, the KSC departs in critical ways from the traditional concept of a hybrid tribunal, representing an internationally dominated court with minimal local involvement. By detailing the history of judicial mechanisms employed to prosecute crimes committed during and in the aftermath of the Kosovo War from 1998-1999, …

Fighting Words: Catalonia At The Language Instruction Crossroads, Jane Tien

Duke Journal of Comparative & International Law

The schism between Spain and Catalonia obscures a struggle over the teaching language for non-linguistic subjects in Catalonia's public schools. The recent two decades decanted into Catalan society two Spanish Constitutional Court rulings mandating a Castilian-Catalan conjunctive instruction model—with Catalan as the "center of gravity"—and tasking the Catalan legislature with configuring that "center." Pleasing none and spurned by all, the Constitutional Court duology emboldened activist lower courts to bypass the Catalan legislature, while schools in Catalonia continued to teach almost exclusively in Catalan. With the Castilians alienated and the Catalans defiant, language instruction in Catalonia turned into a festering wound …

Journal Staff

Duke Journal of Comparative & International Law

No abstract provided.

An Ad Hoc Dispute Settlement Mechanism Or A Harmonization Mission? A Reappraisal Of Jurisprudential Fragmentation In International Investment Arbitration, Mohammad Hamdy

Duke Journal of Comparative & International Law

Contrary to the numerous accounts of fragmentation in investment arbitration case law, this Article shows that the case law depicts a high degree of cohesion. The Article argues that jurisprudence in investment arbitration is stabilized by distinct mainstream interpretations of the key provisions of bilateral investment treaties, the main legal instrument in international investment law. The Article considers the frequently cited disagreements among arbitral tribunals in light of competing commitments to either regulatory pluralism or harmonization. It demonstrates that the vast majority of tribunals interpret bilateral investment treaties in a way that circumscribes pluralism and furthers the harmonization of the …

Some Reflections On The “New Law Of The Sea”, Philippe Gautier

International Law Studies

The fortieth anniversary of the opening for signature of the UN Convention on the Law of the Sea provides an opportunity to offer some reflections on the “new law of the sea”; that is, the comprehensive set of rules that was the result of an unprecedented multilateral negotiation process: the Third United Nations Conference on the Law of the Sea (1973–1982). The focus of this article is on the adjudication of sea-related disputes in the “new law of the sea.” In an international legal order where access to a judge or an arbitrator requires the consent of both parties to …

Sovereignty In The Era Of Fragmentation – Eu Trade Agreements And The Notion Of Statehood In International Law, Harri Kalimo, Shorena Nikoleishvili

Duke Journal of Comparative & International Law

In this article, we explore the theme of sovereignty in the context of fragmented international law. We observe that the sovereignty of States may become relativized, not only by the political power of other States, but by its exposure to multiple, functionally separate fields of law. We analyze this theme by asking whether trade agreements as instruments of economic law offer a venue for discussing the sovereignty of sub-statal entities that lack standing on the more traditional international forums. Our analysis focuses first on a recent decision by the Court of Justice of the European Union, which concerned the status …

Tribal Sovereignty And The Right To Life, Clare Holtzman

Duke Journal of Comparative & International Law

On August 26, 2020, the only Native American on federal death row, Lezmond Mitchell was executed by the federal government for the murder of two Navajo citizens on Navajo Nation land. Federal law typically gives Tribal Nations the right to determine whether the death penalty is used against their citizens for crimes committed between Tribal citizens on Tribal land. Yet here, the federal government utilized a loophole to seek the death penalty against the Navajo Nation's wishes. Lezmond Mitchell was not a sympathetic man by any means; indeed, he brutally killed a grandmother and her young granddaughter to steal their …

Bankruptcy Basics: What The U.S. Can Learn From The U.K. Filing Processes, Courtney Kobren

Duke Journal of Comparative & International Law

Although filing for bankruptcy is the primary form of economic relief for U.S. consumers in financial distress, pro se debtors lack access to the consumer bankruptcy system. An individual debtor faces many challenges when filing for bankruptcy without an attorney, since the debtor must rely on free access to the information provided by the U.S. Courts website. However, that information is vague and presented in complex legalese and dissuasive diction. On the other hand, U.K. debtors who need financial relief can file for bankruptcy through a clear and accessible bankruptcy filing process. U.K. debtors also have access to free consumer …

A Path Forward To #Niunamenos Based On An Intersectional Analysis Of Laws Criminalizing Femicide/Feminicide In Latin America, Melissa Padilla

San Diego International Law Journal

Since 2007, eighteen Latin American countries have enacted laws that criminalize femicide/‌feminicide in an effort to address gender-based murders in the region and to uphold their obligations under international human rights law. However, the COVID-19 pandemic and its systemic lingering effects exacerbated the existent dangerous levels of gender-based violence in the region, resulting in an increase in gender-based murders. To address these murders, between 2020 and 2021, a quarter of the eighteen Latin American countries that criminalized femicide/‌feminicide have implemented or are in the process of implementing reforms to their laws criminalizing femicide/‌feminicide. Given this new trend to address the …

24-1, 2022 Masthead

San Diego International Law Journal

No abstract provided.

Long Live Joint Criminal Enterprise: With A Particular Reference To Tadić’S Interactive Construction Between “The Beast” And Specific Direction, Miguel Ângelo Loureiro Manero De Lemos

San Diego International Law Journal

The idea that Joint Criminal Enterprise, in particular its extended version, contravenes fundamental principles of criminal law has gained track. Thus, not only did the International Criminal Court distance itself from the construct but, today, the widely held view is that the extended version should be discarded, not least because it is not grounded in customary international law. This Article challenges that view. While addressing scholarly criticism towards Joint Criminal Enterprise, and demonstrating why the “beast” is a solid construction, it argues that prosecutors and judges must look past the written provisions of the Statute of the International Criminal Court …

End Crime With Harm? Castration For Sexual Offenders In Hong Kong, Max Hua Chen

San Diego International Law Journal

The issue of post-conviction treatment of sex offenders has been the subject of debate and changes to State legislation, particularly in respect of paedophile offences. One such treatment method is through chemical or physical castration on either a mandatory or a voluntary basis. In this regard, some States have implemented these measures for certain paedophile offences. Hong Kong (HK) has no such laws in place. Researchers such as William Winslade and his colleagues highlighted that whilst paedophilia may not be a stringently defined condition, it is one which involves a “reinforcing [pattern] of sexual behaviors,” with the result that sexual …

‘I Will Control Your Mind’: The International Regulation Of Brain-Hacking, Thibault Moulin

San Diego International Law Journal

In the near future, the use of neurotechnologies—like brain-computer interfaces and brain stimulation—could become widespread. It will not only be used to help persons with disabilities or illness, but also by members of the armed forces and in everyday life (e.g., for entertainment and gaming). However, recent studies suggested that it is possible to hack into neural devices to obtain information, inflict pain, induce mood change, or influence movements. This Article anticipates three scenarios which may be challenging in the future—i.e., brain hacking for the purpose of reading thoughts, remotely controlling someone, and inflicting pain or death—and assesses their compliance …

Deportations For Drug Convictions In The United States And The European Union: Creating A More Compassionate Approach Toward Drug Convictions In The Immigration Law, Megan Smith

San Diego International Law Journal

This Comment begins by examining and comparing the legal framework for deportation and other immigration consequences for convictions of drug offenses in the United States, the European Union, and the United Kingdom. This Comment then looks at the harsh effects of current immigration policy on individuals and marginalized communities. Finally, this Comment argues that immigration law should be reformed to adopt a more humanitarian approach toward non-citizens convicted of drug offenses. Deportation and other harsh immigration consequences for drug offenses levy disproportionately severe punishments toward vulnerable minority immigrant communities, exposing them to consequences much harsher than non-immigrants would face for …

K-Pop’S Secret Weapon: South Korea’S Criminal Defamation Laws, Rebecca Xu

San Diego International Law Journal

South Korea’s criminal defamation laws have long been considered an intrusion on the free speech rights of citizens, especially in regard to the usage by politicians against their opponents and journalists to suppress criticisms. This Comment considers the history and effects of these controversial defamation laws through the lens of recent scandals within the Korean entertainment industry, where regular citizens accusing Korean celebrities of past school violence are confronted with threats of defamation charges. To highlight the controversial nature of such laws, comparisons will be drawn between South Korea and other countries to highlight the restrictive nature of Korea’s laws.

Liability Rule Practices Amidst The Property Rule Of Indonesian Capital Market, Adiwarman Adiwarman

Indonesia Law Review

Shareholder protection is the most important legal issue in capital market law. Conflict of interest is one of the corporate actions in the capital market. The property rule requires independent shareholders’ approval for conflicts of interest transactions. The property rule paradigm empowers independent shareholders in the company’s decision-making process. In practice, listed companies violate the property rule and are subject to sanctions, but the rights of shareholders will be reduced due to fines imposed by the capital market authorities. A normative method is used to answer the problem of how does Indonesia enforce the conflict of interest rule in order …

Analysis Of Discriminatory Measures From European Union Renewable Energy Directive Ii To Indonesia As A Palm Oil Producer Country, Enrico Denis Sihotang

Indonesia Law Review

On 21 December 2018, the European Union (EU) issued a regulation titled Renewable Energy Directive II (RED II), where the RED II policy introduced the indirect land use change (ILUC) criteria for palm oil. RED II states that palm oil is classified as a commodity with a “ high ILUC risk” type, and as such, the EU will gradually reduce palm oil consumption and no longer use palm oil by 2030. Indonesia brought this issue to WTO in 2020. Indonesia, through its consultation, argued that the RED II is inconsistent with the few provisions of the General Agreement on Tariffs …

Nonconsensual Family Obligations, Emily J. Stolzenberg

BYU Law Review

Even as the pandemic has both highlighted and compounded the challenges many U.S. families face in meeting their members’ basic needs, efforts to expand public subsidies for caretaking have gained little traction. Scholars have identified many historical and practical reasons for Americans’ entrenched skepticism toward the welfare state. Ideas matter, too, and this Article uncovers and critiques one that works to limit collective financial responsibility for families: the conviction that family support obligations must be legitimated through consent.

In family law, as in liberal political theory, consent works to reconcile state regulation with individual freedom. But because consent is a …

Francisco Cedeno, Petitioner And Appellee V. Xochitl Cedeno, Respondent And Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

appeal from final contempt order of the Honorable G. Michael Westfall Of the Fifth Judicial District Court in and for Washington County, State of Utah Francisco I. Cedeno, Pro Se 1450 N Dixie Downs Road Trailer # 23 St. George, UT 84770

Of the Fifth Judicial District Court in and for Washington County, State of Utah Francisco I. Cedeno, Pro Se Trailer # 23 Kathryn Bliss Holt #5666 Boyack Christiansen Legal Solutions Attorney for Appellant

The Congruent Constitution (Part Two): Reverse Incorporation, Jay S. Bybee

BYU Law Review

In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause would not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due …

Abolishing The Evidence-Based Paradigm, Erin Collins

BYU Law Review

The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms. …