Law Commons^™

Notes On Continental Constitutional Identities, Benjamen F. Gussen

Vanderbilt Journal of Transnational Law

Geo-constitutional analysis examines the reciprocal effect of geography on constitutions. Within this analysis, a continental constitutional identity focuses on the intersection between institutional geographies and institutional identities, where constitutions are understood as meta-institutions. In some constitutions, belonging to a continent is part of the national identity, while other constitutions only signal a non-geographic, usually an ethnic, identity. The US Constitution is an example of the former. The quintessential example of a non-geographic constitution is the Constitution of the Russian Federation. A similar disregard of continental identities can be found in Israel and the Arab League countries east of the Sinai …

Nonparty Jurisdiction, Aaron D. Simowitz, Linda J. Silberman

Vanderbilt Journal of Transnational Law

The Supreme Court's recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must …

Constitutional Adjudication In Japan: Context, Structures, And Values, John O. Haley

Vanderbilt Law School Faculty Publications

Judges in Japan share the prevailing communitarian orientation of their society, an orientation that rejects Manichean choices and moral or "scientific" absolutes, but instead relies on their collective and individual perceptions of community values, including the global community, shared by peers. They also, I believe, accept an unstated premise that legislative and administrative decisions reflect a consensus among the participants--not a simple majority. The issue remains as to who participates--who sits at the table--but the political and administrative processes do not routinely require merely fifty-one out of a hundred votes. As a consequence, judges are cautiously conservative. They adhere to …

Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enriquez

Vanderbilt Journal of Transnational Law

This Article builds upon Philip C. Jessup's revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-&-vis international law. This theory, called metanationalism, rejects Harold Koh's theory of transnationalism and demonstrates that …

Waging War: Japan's Constitutional Constraints, John O. Haley

Vanderbilt Law School Faculty Publications

Both electoral results and public opinion polls have long revealed what most observers have viewed as a paradox if not a contradiction. By significant majorities, the Japanese people appear to oppose any revision of article 9, but support the SDF and their deployment with legislative sanction. The seemingly antithetical aspects of these views can be reconciled if one accepts the proposition that the public is willing to allow an armed force but only within parameters that are still ill-defined. So long as article 9 remains, the government is constrained by the need for legislative approval and at least potential judicial …

From Unwritten To Written: Transformation In The British Common-Law Constitution, David Jenkins

Vanderbilt Journal of Transnational Law

This Article posits that the British Constitution is changing by incorporating written principles that restrain Parliament through judicial review. The Author asserts that this constitutional model has basis in the common law and the orthodox theories of Blackstone and Dicey. In addition, the "ultra vires" doctrine supports the model and provides a basis for judicial review of Parliament. As constitutions may accommodate written and unwritten elements of law, as well as various means of enforcement and change, the Author posits that constitutions are defined by how strongly they reflect underlying legal norms. With a shift in the rule of recognition …

How We Should Think About The Constitutional Status Of The Suspected Terrorist Detainees At Guantanamo Bay, Akash R. Desai

Vanderbilt Journal of Transnational Law

In the aftermath of the September 11th attacks, the United States has held suspected terrorist detainees captured during the military campaign in Afghanistan indefinitely at the United States military facility at Guantanamo Bay, Cuba. Among those currently detained are members of the al-Qaeda terrorist group and the Taliban. Currently the detainees are in the peculiar situation of generally being outside the scope of protections offered by both the international humanitarian law and the Unites States criminal law regimes.

This Note examines the extraterritorial scope of the United States Constitution as it applies to the suspected terrorist detainees at Guantanamo Bay. …

Unratified Treaties And Other Unperfected Acts In International Law: Constitutional Functions, W. Michael Reisman

Vanderbilt Journal of Transnational Law

In international law's sociology of knowledge, unperfected legal acts are routinely examined and assigned some legal valence. Scholars quite properly use such material to assess incipient changes, and treatise and monograph writers are expected to determine whether some unperfected legal material is, or is in the process of becoming, customary international law. This is a perfectly proper use of unperfected legal material, because one of the functions of the scholar is to anticipate trends and to appraise incipient developments in terms of the impacts they may have on the most important goals of the international system. The most acute problem …

Anticipating Hong Kong's Constitution From A U.S. Legal Perspective, John M. Rogers

Vanderbilt Journal of Transnational Law

This Article explores the possible nature of Hong Kong's Constitution after July, 1997, and discusses alternative ways of interpreting and enforcing the constitution. The author first proposes three definitions for the word "constitution'" (1) how political power is actually "constituted," (2) a written document and (3) a referent for disputes. The author then explains Hong Kong's unusual constitutional status where Hong Kong will be governed under a written constitution the Basic Law. and at the same time, many aspects of the Basic Law will be "guaranteed" by an international agreement, the Joint Declaration. The author proceeds to evaluate the means …

Preface, Laurelyn E. Douglas

Vanderbilt Journal of Transnational Law

The symposium, HONG KONG'S REINTEGRATION INTO THE PEOPLE'S REPUBLIC OF CHINA: CONSTITUTIONAL ISSUES, POLICY APPROACHES & HUMAN RIGHTS CONCERNS, AND ECONOMIC & LEGAL IMPLICATIONS, was held at the Vanderbilt University School of Law on March 28-29. 1997. Featuring presentations by diverse speakers from a variety of places and perspectives, the symposium addressed a broad range of issues. Topics ranged from comparative constitutional law to human rights and practical business concerns. While differences emerged, it was clear that fully understanding any one area requires knowledge of the others: the viability of markets may well depend upon the validity of documents proclaiming …

The Incorporation Of International Law And The Impact On Constitutional Structures And Rights In Hungary, Duc V. Trang

Vanderbilt Journal of Transnational Law

In 1993, the Hungarian Constitutional Court upheld a draft law that would allow the prosecution of crimes committed during the 1956 uprising, despite the expiration of statutes of limitations. In reaching this result, the Court raised international law to the level of a constitutional standard by which Hungary's domestic laws would be judged. In this Article, the author examines the impact of the Court's decision to transform international law into domestic law. The author explores the implications of adopting international law on the relationship between the Court and other branches of the government, the development of domestic law, the growth …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

MEDICAL MALPRACTICE ABROAD BY UNITED STATES PHYSICIAN IN CONNECTION WITH DEPARTMENT OF STATE REGULATIONS GOVERNING TORT CLAIMS PROVIDED FOR AN INVESTIGATIVE PROCEDURE FOLLOWED BY AGENCY DECISION--AGENCY FOR INTERNATIONAL DEVELOPMENT HOLDS NO CONSTITUTIONAL OBLIGATIONS TO EVALUATE MEDICAL MALPRACTICE CLAIM ON THE MERITS AND IN ACCORD WITH MINIMAL DUE PROCESS. Tarpeh-Doe v. United States, 904 F.2d719 (D.C. Cir. 1990).

THE FOREIGN CORRUPT PRACTICES ACT DOES NOT CREATE AN IMPLIED PRIVATE RIGHT OF ACTION THAT KENTUCKY TOBACCO GROWERS COULD USE TO RECOVER DAMAGES FROM COMPANIES THAT ALLEGEDLY ENGAGED IN CORRUPT PRACTICES TO THE DETRIMENT OF GROWERS. THE ACT OF STATE DOCTRINE, HOWEVER, DOES …

Recent Decision, Duane A. Wilson

Vanderbilt Journal of Transnational Law

The Fifth Circuit Court of Appeals has taken the instant opportunity to write an essay on the law of search and seizure on the high seas. Applying Ramsey, the majority found authority for the Coast Guard action, either under section 89(a) or through the consent of the Panamanian Government. Although both conclusions are open to dispute, the major question arises from the court's analysis of the constitutionality of the Coast Guard action. While a firm resolution of the confusion engendered by previous conflicting Fifth Circuit decisions is certainly desirable, the instant court's resolution fails to provide necessary analytical clarity. Judge …

The Unconstitutional Detention Of Mexican And Canadian Prisoners By The United States Government, Jordan J. Paust

Vanderbilt Journal of Transnational Law

A recent article by Professor Bassiouni addresses the procedures for the transfer of prisoners under agreements with Mexico and Canada and certain "substantive constitutional issues" in a most interesting way. Nevertheless an interest in addressing constitutional problems from the most thorough of approaches possible compels further comment on federal powers and constitutional rights. Professor Bassiouni's efforts are noteworthy but his stated conclusion that "[t]he scheme for the transfer of offenders is a laudable step which should be supported by the bench and bar should not be unquestioningly accepted. The transfer agreements represent a retreat from the constitutional protection of fundamental …

The 1977 Soviet Constitution: A Historical Comparison, Igor L. Kavass, Gary I. Christian

Vanderbilt Journal of Transnational Law

Throughout the Soviet Union's history, its four constitutions have been a reflection of the political climate of the particular period. The documents thus viewed provide a historical and political benchmark against which life and thought in the U.S.S.R. may be fairly accurately gauged. When Brezhnev addressed the USSR Supreme Soviet on October 4, 1977, to recommend the inevitable adoption of the 1977 Constitution, he again stressed the historical perspective in which the document must be viewed. He stated: "We will adopt the new Constitution on the eve of the 60th anniversary of the Great October Socialist Revolution. This is not …

Books Received, C. C. S.

Vanderbilt Journal of Transnational Law

COMMERCIAL OPERATIONS IN EUROPE

Edited by R. M. Goode and K. R. Simmons Published for the Faculty of Laws; Queen Mary College, University of London Boston: A. W. Sijthoff, 1978. Pp. 448.

COMPARATIVE CONSTITUTIONAL LAW

By Mauro Cappelletti and William Cohen Indianapolis, Indiana: Bobbs -Merrill, 1979. Pp. 628.

COMPARATIVE LAW: WESTERN EUROPEAN AND LATIN AMERICAN LEGAL SYSTEMS

By John H. Merryman and David S. Clark Indianapolis, Indiana: Bobbs -Merrill, 1978. Pp. 1278.

THE DISCIPLINE OF LAW

By Lord Denning London: Butterworths,1979. Pp. 330.

INTERNATIONAL LAW AND THE MOVEMENT OF PERSONS BETWEEN STATES

By Guy S. Goodwin -Gill Oxford: Clarendon Press, …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. Admiralty A State has Standing to Sue to Recover the Cost of Replacing Natural Resources Destroyed by Pollution

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2. Aliens' Rights Executive Order Barring Lawfully Admitted Resident Aliens from Federal Civil Service is Valid

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3. Constitutional Law Scope of Lacey Act Limited to Foreign Laws Designed to Protect Wildlife

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4. European Economic Community Restrictive Resale Provisions, Discriminating Pricing Policies, and Refusals to Deal by Corporation with a Dominant Position in a Substantial Part of EEC Violates Article 86 of the EEC Treaty

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5. International Travel Statute Suspending Social Security Income Benefits for Recipient Temporarily Out …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

Books Received

AFRICAN GOALS AND DIPLOMATIC STRATEGIES IN THE UNITED NATIONS By Moses E. Akpan

North Quincy, Mass.: Christopher Publishing House, 1976. Pp. 165. $9.95.

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BASIC PROBLEMS OF THE EUROPEAN COMMUNITY

Edited by P.D. Dagtoglou

Oxford: Basil Blackwell, 1975. Pp. xvii, 286, $18.00.

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BIBLIOGRAPHY ON TAXATION OF FOREIGN OPERATIONS AND FOREIGNERS: 1968-1975

By Elisabeth Owens & Gretchen Hovemeyer

Cambridge, Mass.: International Tax Program, Harvard Law School,1976. Pp. xiii, 107. $7.50.

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THE CONSTITUTION AND THE CONDUCT OF FOREIGN POLICY

Edited by Francis 0. Wilcox and Richard A. Frank

New York: Praeger Publishers, 1976. Pp. xiv, 145. $12.50.

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Recent Decisions, Arthur R. Louv, Mark R. Von Sternberg, Jesse W. Hill, Glen T. Oxton

Vanderbilt Journal of Transnational Law

ADMIRALTY--DAMAGES--AWARD ALLOWED FOR EMOTIONAL DISTRESS OF SURVIVING SPOUSES AND CHILDREN, OR PARENTS, UNDER GENERAL MARITIME LAW

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ANTITRUST--EXTRATERRITORIAL JURISDICTION--EFFORTS TO SECURE ACTION BY A FOREIGN STATE CONDUCIVE TO MONOPOLIZATION NOT PRIVILEGED; ACT OF STATE DOCTRINE BARS ANTITRUST CLAIM ARISING FROM ACTS OF A FOREIGN SOVEREIGN ALLEGEDLY INDUCED BY DEFENDANT

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CONSTITUTIONAL LAW--CITIZENSHIP--FIVE YEAR STATUTORY RESIDENCE REQUIREMENT AS A CONDITION SUBSEQUENT TO RETENTION OF CITIZENSHIP BY PERSONS BORN ABROAD NOT VIOLATIVE OF FIFTH AMENDMENT DUE PROCESS

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PRIVATE INTERNATIONAL LAW--SOVEREIGN IMMUNITY--EXECUTIVE SUGGESTION BINDING ON COURTS DESPITE CONTRACTUAL WAIVER OF IMMUNITY

Elliot E. Cheatham, Phillip C. Jessup

Vanderbilt Law Review

A man of great courage and a fighter for principle, he would never surrender, but if conscience and conviction permitted, he would have great pleasure in giving. As one of our other colleagues has suggested to me, Elliott Cheatham's greatness as a teacher' is due to the fact that he is always eager to give. I have witnessed many examples of Elliott's modesty, which should not be mistaken for any wobbly lack of self-confidence. When he pleads that he has limitations which suggest the desirability of seeking someone else for an honor or place of distinction or a juridical contribution, …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Unincorporated Divisions of a Corporation May Be Separate Entities for Purposes of Antitrust Laws

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Constitutional Law--One-Year Residence Requirement as Condition of Eligibility for State Welfare Aid Held Unconstitutional

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International Law--Sovereign Immunity and Act of State--Hickenlooper Amendment Precludes Assertion of Act of State Where Act Is Violative of International Law

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Products Liability--Lender Held Liable for Gross Defects in Housing Development It Had Financed

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Taxation--Constructive Ownership Rules Automatically Applied to Section 302(b) (1)Dividend Equivalency Test

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Taxation--IRS Rules Organization Which Discriminates on Basis of Race Not Charitable

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antitrust, constitutional law, international law, products liability, taxation

The Sabbatino Case And The Sabbatino Amendment: Comedy--Or Tragedy--Of Errors, William H. Reeves

Vanderbilt Law Review

The issues and decisions in the Sabbatino litigation and the significant concepts of the Sabbatino legislation are here reviewed and considered in five parts. Part I discusses the mistaken beliefs of the Congress as to the reasons for proposing and enacting the Sabbatino Amendment. Part II then examines the relations between Cuba and the United States, explaining how Cuba's insult made possible the judicial errors in the Sabbatino decisions, which were reversed by the Supreme Court, and also prompted the subsequent Sabbatino legislation. In Part III, proof will be given of congressional misinterpretations of foreign law and foreign court decisions …