Law Commons^™

The Vienna Convention On Consular Relations: A Study Of Rights, Wrongs, And Remedies, William J. Aceves

Vanderbilt Journal of Transnational Law

This Article reviews U.S. compliance with the Vienna Convention on Consular Relations and the ability of foreign governments to seek redress for treaty violations in federal courts. The Vienna Convention requires signatory states to notify detained foreign nationals of their right to consular access. While the United States has sought to ensure that foreign governments comply with the provisions of the Vienna Convention when they detain U.S. citizens abroad, it has failed to ensure that foreign nationals are provided with comparable protection when they are detained in the United States.

The Author examines several cases in which both foreign nationals …

The Relevance Of The Concepts Of War And Armed Conflict To The Law Of Neutrality, Georgios C. Petrochilos

Vanderbilt Journal of Transnational Law

The law of neutrality applies among states engaged in war and third states seeking to maintain friendly relations with the belligerent states. While belligerent parties possess belligerent rights, including those in the Law of Prize, states deemed neutral must fulfill certain neutral duties. In exchange, neutral states enjoy the protection afforded to neutral parties by the law of neutrality.

The Article focuses on the state of affairs that triggers application of the law of neutrality. The law addressing this issue leaves many questions unanswered. This Article addresses the importance of the declaration of war by belligerent states in assessing whether …

Secrets And Lies? Swiss Banks And International Human Rights, Anita Ramasastry

Vanderbilt Journal of Transnational Law

This Article explores the relationship of Swiss banks and their tradition of bank secrecy to the activities of a particular group of depositors: war criminals and other human rights violators. The Article focuses on litigation brought in U.S. courts by plaintiffs seeking access to Swiss bank deposits made by the Nazis and Ferdinand Marcos. The Article examines the possibility of holding banks accountable under international law for assisting a customer who has committed a serious breach of international law. Part I introduces the role of bank secrecy in the current litigation. Part II describes the Swiss tradition of bank secrecy. …

Ireland's Divorce Bill: Traditional Irish And International Norms Of Equality And Bodily Integrity At Issue In A Domestic Abuse Context, Anthony T. Barnes

Vanderbilt Journal of Transnational Law

On November 24, 1995, the Irish population voted to ease Ireland's constitutional ban on divorce by means of a constitutional amendment. The new amendment and the bill that effectuates it give Irish citizens a limited legal right to end their marriages for the first time in Ireland's history. The limits surrounding Irish divorce consist of a significant waiting period, a living-apart requirement, and a slant toward mediation.

This Note explores the predicaments of abused spouses and the unique risks that Ireland's divorce limitations pose to spousal abuse victims seeking to end their marriages. This Note argues that the limitations of …

Predicting The Effect Of Italy's Long-Awaited Rape Law Reform On "The Land Of Machismo", Amy J. Everhart

Vanderbilt Journal of Transnational Law

In 1996, the Italian Parliament enacted a new rape law, replacing a law written in 1936 under the direction of Fascist-era leader Benito Mussolini. While the old law classified rape as a crime against public morality, the new law declares it a crime against the person. That it took sixty years to reform the law is a reflection of Italy's long history of subordinating its women. That the law has finally been reformed is a reflection that those women have united to change that attitude. This Note discusses the history of the rape law in Italy and the role of …

Intervention And Joinder As Of Right In International Arbitration, S. I. Strong

Vanderbilt Journal of Transnational Law

For the purpose of this Article, an existing party is said to have a claim to join a third party into an arbitration as of right when (1) in the third party's absence, complete relief cannot be accorded among those already parties to the arbitration or (2) the third party asserts an interest relating to the subject of the arbitration and is so situated that the disposition of the arbitration in the third party's absence may (a) as a practical matter impair or impede the third party's ability to protect that interest or (b) leave any of the persons already …

A New Miranda For Foreign Nationals?, James A. Deeken

Vanderbilt Journal of Transnational Law

This Note will explore the conflict between federalism expressed in the U.S. Constitution and the demands that international treaties, entered into by the federal government, make on local governments. Part I will explain the current state of the issues addressed in the Note, including the Vienna Convention, and the relevant provisions relating to the arrests of foreign nationals. The Note will then examine whether, given that international treaties have been interpreted as providing rights and provisions that are only enforceable by countries, a private party, such as a foreign national, has the power to invoke the provisions in his defense …

More Turbulence Ahead: A Bumpy Ride During U.S.-Japanese Aviation Talks Exemplifies The Need For A Pragmatic Course In Future Aviation Negotiations, Derek Lick

Vanderbilt Journal of Transnational Law

This Note analyzes the U.S.-Japanese aviation agreement and the negotiations that led to its signing. More specifically, it examines how the parties involved--including U.S. airline carriers who disagreed as to how the United States should proceed--influenced the negotiation process. Part II of the Note focuses on the current U.S. policy of expanding open skies when negotiating bilateral aviation treaties with foreign countries. Part III looks at the U.S.-Japanese aviation market and its importance for U.S. airlines. Part IV examines how the Japanese government successfully used its strategic placement in the Asian market to avoid U.S. efforts to impose an open …

Private Religious Choice In German And American Constitutional Law: Government Funding And Government Religious Speech, Ingrid B. Wuerth

Vanderbilt Journal of Transnational Law

We will never face Germany's specific problems of religion and government, arising as they do from its particular history. The sharply contested religion cases from Germany in the late 1990s do, however, point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through …

Removing The Venom From The Snakehead: Japan's Newest Attempt To Control Chinese Human Smuggling, Ian Peck

Vanderbilt Journal of Transnational Law

This Note examines Japan's 1997 Amendment to the Immigration Control and Refugee Recognition Act as a response to illegal Chinese immigration. Part II of the Note identifies and explains the international human smuggling crisis. Part III examines Sino-Japanese human smuggling. Finally, Part IV analyzes the Immigration Control and Refugee Recognition Act in detail and suggests some of the Act's shortcomings.

Transnational Bribery Of Foreign Officials: A New Threat To The Future Of Democracy, Julie B. Nesbit

Vanderbilt Journal of Transnational Law

Anti-corruption movements around the world have set the stage for a comprehensive attack on transnational bribery. The Organization of American States adopted the first convention to criminalize transnational bribery in 1996, and efforts by the OECD to address the issue culminated in the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which was signed by the representative Ministers in November 1997, and is expected to enter into force by 1999. While these developments are promising, they offer only a partial solution to a complex problem. Transnational bribery will persist until a comprehensive anti-corruption strategy, based on …

Municipal Involvement In International Relations, John Jack William Hilgers

Theses and Dissertations in Urban Services - Urban Management

The purpose of this study is to examine municipal involvement in international relations in the United States. This municipal phenomenon is occurring concurrently with both a shift away from the traditional nation-centric structure of international relations under the influence of globalism as well as a sharp decline in intergovernmental aid. The research questions were: (1) What are the indicators that define municipal involvement in international relations? and (2) What is the extent of that involvement?

Extensive qualitative and research was conducted in the form of an exploratory literature survey which was set forth in narrative analysis to overcome the paucity …

United States V. Adlman: Protection For Corporate Work Product?, Charles M. Yablon, Steven S. Sparling

Articles

The Adlman case, decided by the U.S. Court of Appeals for the Second Circuit, significantly expanded the scope of the work product doctrine, particularly affecting corporate legal documents. The court adopted the "because of litigation" test, determining that documents created in anticipation of future litigation are protected, even if they serve dual purposes such as business strategy. This ruling has implications for how companies prepare for transactions and disputes, potentially shielding more strategic documents from discovery while maintaining exceptions for routine or regulatory documents.

Rights, Wrongs, And Recourse In The Law Of Torts, Benjamin C. Zipursky

Vanderbilt Law Review

Cardozo's opinion in Palsgraf v. Long Island Railroad Co.' hinges on a stark assertion about rights and wrongs: A plaintiff has no right of action unless she can show "'a wrong' to herself; i.e., a violation of her own right." Cardozo himself made this principle the core of his analysis, yet scholars typically regard it as impenetrable, circular, vacuous, or, as Posner put it, "eloquent bluff." Small wonder, then, that readers typically turn to "reasonable foreseeability" as the essence of the case. Leading scholars treat Palsgraf as a proximate cause case, despite Cardozo's pronouncement that "W[the law of causation, remote …

Deconstructing Homo[Genous] Americanus: The White Ethnic Immigrant Narrative And Its Exclusionary Effect, Sylvia R. Lazos

Scholarly Works

This Article examines why the assumption of sameness is so pervasive in our society, and why the very idea of diversity is so resisted. The assumption and the corollary mandate to be the same are embedded in American cultural ideology, in how Americans think of themselves, in the stories that we tell regarding who we are and where we come from, in how we construct our values and norms, and in how Americans make sense of our chaotic social world. The assumption and mandate of sameness not only influence American culture, they also guide judges' thinking and decision-making in key …

The Relevance Of Religion To A Lawyer's Work: Legal Ethics, Leslie C. Griffin

Scholarly Works

No abstract provided.

The Conflict Between Species In An Ever More Crowded World, Jane Goodall

Animal Law Review

No abstract provided.

Another Weapon For Combating Family Violence: Prevention Of Animal Abuse, Charlotte Lacroix

Animal Law Review

Dr. Lacroix discusses the correlation between different forms of family violence and suggests that family pets are just an­other victim. Dr. Lacroix proposes that stronger animal an­ticruelty laws may be part of the solution to reducing family violence because they enhance the likelihood of detection of an offender's abusive behavior.

Oregon Dog Control Laws And Due Process: A Case Study, Christopher C. Eck, Robert E. Bovett

Animal Law Review

Mr. Eck and Mr. Bovett examine the inequities and inconsis­tencies in Oregon dog control laws and due process concerns arising from them. The authors outline constitutional require­ments that need to be enforced to ensure protection against unreasonable government actions in cases involving these laws.

Recovery Of Common Law Damages For Emotional Distress, Loss Of Society, And Loss Of Companionship For The Wrongful Death Of A Companion Animal, Steven M. Wise

Animal Law Review

Mr. Wise analyzes experiential recognition of the bond that ex­ists between human companions and companion animals in the context of possible recovery of tort damages for the wrongful death of a companion animal. He demonstrates that companion animals are often seen by their human companions as members of the family (holding much the same status as children). He discusses historical aspects of the common law as they relate to current tort law in such cases and examines the tension that exists between principle and policy.

Dolphin-Safe Tuna: The Tide Is Changing, Kristin L. Stewart

Animal Law Review

Ms. Stewart reviews the history of the tuna-dolphin contro­versy in the Eastern Pacific Ocean. She explores international agreements and U.S. law that mandate dolphin-safe tuna fish­ing practices. Finally, Ms. Stewart reviews the steps taken by the United States, including embargoes against other coun­tries' tuna, to force tuna-fishing nations to use dolphin-safe practices.

The Fruits Of Our Labor: Results From The First Session Of The 105th Congress -- 1997 Federal Legislative Summary, Nancy Perry

Animal Law Review

Ms. Perry outlines the actions taken on animal issues during the first session of the 105th Congress and discusses the weak consideration and lack of progress made in much of the legis­lative agenda in is this area. She also provides a current legislative update for each bill involved.

"Save The Whales" V. "Save The Makah": The Makah And The Struggle For Native Whaling, Richard Kirk Eichstaedt

Animal Law Review

In 1997 the International Whaling Commission approved a quota for the Makah Indian Tribe to hunt four gray whales per year, culminating years of legal wrangling and political maneu­vering by all of the concerned parties. Mr. Eichstaedl examines the history of the Makah whaling rights from the Tribe's treaty with the United States in 1855 to the present-day battles with Congress and the IWC. This unfolding story pits a species of whale once on the brink of extinction, against Native Ameri­cans re-asserting a centuries-old custom.

Can Nonhuman Animals Find Tort Protection In A Human-Centered Common Law?, Enger Mccartney-Smith

Animal Law Review

Section 870 of the Restatement (Second) of Torts provides a method by which a court might extend private intentional tort rights to nonhuman animal plaintiffs. Given our current scien­tific and experiential understanding of many species, com­bined with existing court procedures to ease administrability, such an extension of tort law is mandated.

If Animal Rights Activists Could Write Federal Research Policy, Vasanth R. Shenai

Animal Law Review

Mr. Shenai examines animal rights in the context of federal animal testing. After discussing current federal research policy and the positions held by animal rights advocates, he proposes a new statute to accommodate all interests in society as well as the rights of the animals being considered for testing.

The Sky Is Still Blue In Texas: State Law Alternatives To Federal Securities Remedies, Keith A. Rowley

Scholarly Works

Recent actions by the United States Supreme Court and by Congress have reduced the number of avenues by which plaintiffs relying on federal law may pursue alleged wrongdoers for securities fraud and have imposed significant additional requirements on plaintiffs suing in federal court to recover from securities fraud. As a consequence, persons who claim injury from some material misrepresentation or omission in the purchase, sale, offer for purchase, or offer for sale securities, or who have suffered as a consequence of some other impropriety relating to such transactions, may find better options available in state court or under state law …

Judge William B. Jones And Judge Edward A. Tamm Judicial Lecture Series, E. Edwin Eck

Faculty Law Review Articles

This article is a tribute to the two federal judges in whose memory the Judge William B. Jones and Judge Edward A. Tamm Judicial Lecture Series is named. The Judicial Lecture Series, held at the University of Montana School of Law, is designed to engage students, faculty, practicing lawyers, and judges in study and discussion leading to an enhanced understanding of our judicial system and the roles of attorneys and judges in that system.

Not In My Backyard: The Clash Between Native Hawaiian Gathering Rights And Western Concepts Of Property In Hawaii, Samuel J. Panarella

Faculty Law Review Articles

This article examines the uneasy truce that exists between Western property law and the original Hawaiian native gathering practices that existed before the arrival of Europeans. The author traces the development of Hawaiian law from early cases that severely restricted gathering rights to more permissive results. The article demonstrates both the strengths and weaknesses of the present system of land tenure in Hawaii and argues for the continued expansion of native Hawaiian gather rights providing such expansion takes place within, not outside of, the dominant fee simple land tenure system now in place in Hawaii.

Peremptory Pragmatism: Religion And The Administration Of The Batson Rule, A. C. Johnstone

Faculty Law Review Articles

This article argues that religion-based peremptory challenges, while avoiding substantial administrative and privacy costs, allow litigants to strike potentially biased jurors and thus vindicates the Constitution's guarantee of a trial by an impartial jury. Part I explains the pragmatic value of the peremptory challenge and how courts accommodate the peremptory challenge under equal protection principles as applied to race, sex, and other personal characteristics. Part II describes the Minnesota Supreme Court's refusal to extend Batson to religion in State v. Davis, and other courts' approaches to the religion question before and after the Supreme Court denied certiorari to Davis …

Unreasonable Risk: Model Rule 1.6, Environmental Hazards, And Positive Law, Irma S. Russell

Faculty Law Review Articles

This article explores the disjuncture of positive law and the duty of confidentiality as formulated by Model Rule 1.6. Its central purpose is to question the decision to exclude positive law from the framework of analysis created by the Rule.

Part II summarizes the duty of confidentiality owed to clients by attorneys. Part III examines Model Rule 1.6. Part IV surveys environmental statutes, noting the strong public policy in favor of protection against environmental hazards. Part V explores common law liability, noting the effect of recent developments in the law, such as the abrogation of the bar of privity and …