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Agenda: A Life Of Contributions For All Time: Symposium In Honor Of David H. Getches, University Of Colorado Boulder. School Of Law, University Of Colorado Law Review

A Life of Contributions for All Time: Symposium in Honor of David H. Getches (April 26-27)

On April 26-27, 2012, Colorado Law honored David H. Getches with a symposium to celebrate his life and legacy of trailblazing scholarship. “A Life of Contributions for All Time” featured a keynote address by Distinguished Professor Charles Wilkinson entitled, “Hero for the People, Hero for the Land and Water: Reflections on the Enduring Contributions of David Getches.” Top scholars in the fields of natural resources, water, and American Indian law reflected on Dean Getches’ contributions and their own insights into these fields, including Professor John Leshy, John Echohawk, Professor Carole Goldberg, Professor Joe Sax, Professor Rebecca Tsosie, Justice Greg Hobbs, …

Filling The Gap Between Morality And Jurisprudence: The Use Of Binding Arbitration To Resolve Claims Of Restitution Regarding Nazi-Stolen Art , Rebecca Keim

Pepperdine Dispute Resolution Law Journal

Recognizing the gaps in existing legislation, this article will argue that disputes arising between claimants and museums regarding the repatriation of Nazi-looted artwork should be decided by binding arbitration rather than litigation. To facilitate such arbitration, international law should support the creation of an arbitration commission, which would provide the most efficient and consistent way to resolve claims. Moreover, a neutral forum with clear rules of law and procedure capable of resolving claims would not only be more fair to claimants, but also to museums and personal collectors. This article will first discuss the severity and magnitude of Nazi looting …

Actual Versus Perceived Performance Of Judges, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

No abstract provided.

The Increased Use Of "Reconciliation" In Criminal Cases In Central Asia: A Sign Of Restorative Justice, Reform Or Cause For Concern?, Cynthia Alkon

Pepperdine Dispute Resolution Law Journal

Reconciliation, defined in Section VI below, provides the most common alternative to criminal prosecutions in Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan. This article attempts to define and describe the different forms of reconciliation processes in these Central Asian countries. Section IV briefly examines the history, economies, governments, and legal systems including an outline of the criminal procedure of each country. For comparative purposes, Section V briefly examines the development of alternatives to criminal prosecution (generally known as restorative justice) in western nations, by considering the proponents for change, the underlying core values and ethical guidelines, and the types of cases that …

Negotiating A Deal In Korea: Reflections Of A Battle-Scarred Veteran, Michael E. Zacharia

Pepperdine Dispute Resolution Law Journal

In 1996, for an international widget company focused on selling to the Japanese tourist and looking to expand its business, Korea was the Promised Land. Korea had a widget business well in excess of (U.S.) $500 million, and was the second most popular Japanese tourist destination. No foreign companies were in the market, and my client BWC (a world-renowned widget company), sought to change that. They did, for a while. This paper analyzes select aspects of the twelve months of Round One negotiations that led to the triumphant signing of a Joint Venture Agreement with SY, a leading Korean widget …

An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna

Pepperdine Dispute Resolution Law Journal

This article proposes that, despite the West Tankers decision, parties are still not free to breach the terms of an arbitration agreement. On the contrary, there has been a strong trend by English courts to find ways of preventing parties from breaching such agreements. In short, this article serves to quell the panic and elucidate that the West Tankers decision is not a nail in the coffin, but rather a mechanism to reiterate European courts' dedication to ensuring that arbitration provisions remain a potent force against economic infidelity. Part II of this article will provide a brief background of anti-suit …

Adr And A Smile: Neocolonialism And The West's Newest Export In Africa, Anthony P. Greco

Pepperdine Dispute Resolution Law Journal

While the ills of the West's corporatization of the world have long been debated and catalogued, often neglected is the role the law plays in empowering the rich, disenfranchising the poor, and serving as the "handmaiden to empire." Since what has been termed the "rule of law revival," which saw its genesis sometime in the late 1980s, the adoption of Western legal frameworks to help developing and Third World nations transition and gain access to the ever growing global market has become commonplace. With the coming of the Alternative Dispute Resolution (ADR) revolution during the last few decades, the West …

Priests In The Temple Of Justice: The Indian Legal Complex And The Basic Structure Doctrine, Manoj Mate

Contributions to Books

Published as Chapter 3 in Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex, Terence C. Halliday, Lucien Karpik & Malcolm M. Feeley, eds. (2012).

The Development Of The Commercial Judicial System In Uganda: A Study Of The Commercial Court Division, High Court Of Uganda, Geoffrey Kiryabwire

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Sources Of Law, Sources Of Authority: The Failure Of The Philippines' Code Of Muslim Personal Laws, Gregory M. Chiarella

Washington International Law Journal

The Code of Muslim Personal Laws of the Philippines (“CMPL”) was established in 1977 as part of an effort to quell longstanding violence between Christians and Muslims in the predominantly Christian country. This codification of Islamic laws in the areas of marriage, divorce, and inheritance provided for a system of Shari‛a courts that would operate within the larger framework of the legal system of the Philippines. Three and a half decades later, the CMPL has had little effect. The Shari‛a courts are understaffed and underutilized, accounting for less than 0.1% of the caseload in the Philippines. The CMPL is plagued …

Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias

Faculty Scholarship

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean …

2012 International Advocate For Peace Award Acceptance Speech, John Marks

Cardozo Journal of Conflict Resolution

Worldwide, tens of millions of people are caught up in violent conflict, and hundreds of thousands, if not millions, die every year as a direct result. Violence has a profoundly negative impact on the whole planet, even when it occurs in remote places. Where there is violence, lives and livelihoods are shattered; economic development is blocked; human rights are abused; and the environment is devastated. Consequently, preventing violence is a necessary precursor for humanity to move forward in positive ways. Current problems-whether economic, ethnic, or environmental-are too complex and inter-connected to be settled on a violent, adversarial basis. The earth …

The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang

Faculty Scholarship

This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower …

About Coincidence, Nancy Bellhouse May

The Journal of Appellate Practice and Process

No abstract provided.

Chinese Judicial Culture: From Tradition To Modernity, Shen Deyong

Brigham Young University Journal of Public Law

Text of an address by the Hon. Justice Shen Deyong at the Brigham Young University Law School, October 21, 2009.

The Judiciary In Political Transitions: The Critical Role Of U.S. Constitutionalism In Latin America, Nuno Garoupa, Maria A. Maldonado

Cardozo Journal of International and Comparative Law

This paper proposes a theory that explains how political transitions deal with incumbent judiciaries. We argue that a new political regime compares the benefit of reshaping the judiciary with loyal appointees against the political and economic costs of directly interfering, including the cost of international reputation. There are several forms of interventionism including court packing, court purging, and violence against the judiciary. We discuss political transitions in Europe and Latin American civil law jurisdictions through the lens of our theory. We argue that American constitutional influence plays a critical role. In addition, we provide a detailed analysis of the recent …

Israel's Supreme Court Appellate Jurisdiction: An Empirical Study, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

This Essay reports the results of an empirical study of the Israel Supreme Court (ISC). It covers the outcomes of 3,562 cases (as of this writing), all decided in 2006 and 2007, and describes the cases by subject area, litigant-pair characteristics, and source of jurisdiction - mandatory or discretionary. In mandatory-jurisdiction cases ending with clear affirmances or reversals, the ISC affirmed lower court rulings in about 75% of district court criminal case appeals and about 67% of district court civil case appeals. In discretionary- jurisdiction cases, the ISC rarely granted review. It agreed to review about 6 % of petitions …

Civil Justice And The Constitution: Limits On Instrumental Judicial Administration In Japan, Mark A. Levin

Washington International Law Journal

Numerous works have shown how central judicial administrators in Japan may ideologically influence the nation’s lower court judges. This piece draws upon these reports to analyze and frame these circumstances as “instrumental judicial administration,” qualitatively distinguishing the various means used by administrators and reflecting on their degrees of impact on civil procedural justice. Then, moving from description to prescription, the work provides a thorough consideration of the underlying legal context, broadly drawing from constitutional text and history, statutory text, and case law, before launching a search for solutions in its conclusion. Although the immediate focus is on how instrumental judicial …

Economic And Social Rights: The Role Of Courts In China, Randall Peerenboom

San Diego International Law Journal

This Article considers what the role of the courts could and should be in implementing ESR in China. Part II surveys recent global developments giving greater bite to economic and social rights, as well as some of the main controversies, debates, and approaches to promoting, protecting, and fulfilling ESR, with particular attention to the role of the courts. Part III provides a general introduction to the social, legal, political, and economic context in China, and contrasts the situation in China with South Africa?one of the global leaders in judicial implementation of ESR. The overall environment in China is, if not …

The Evolving International Judiciary, Karen J. Alter

Faculty Working Papers

This article explains the rapid proliferation in international courts first in the post WWII and then the post Cold War era. It examines the larger international judicial complex, showing how developments in one region and domain affect developments in similar and distant regimes. Situating individual developments into their larger context, and showing how change occurs incrementally and slowly over time, allows one to see developments in economic, human rights and war crimes systems as part of a longer term evolutionary process of the creation of international judicial authority. Evolution is not the same as teleology; we see that some international …

An Introduction To Comparative Jury Systems (Symposium Editor), Nancy S. Marder

All Faculty Scholarship

The jury is experiencing a renaissance worldwide. Countries that have never had a jury system, or have had one in the past, have turned to citizens to decide criminal cases. Countries, especially those that aspire to be more democratic, have begun to recognize the importance of having ordinary citizens participate in the criminal justice system. Meanwhile, countries with a longstanding jury tradition continue to maintain that tradition. As some countries consider how best to introduce the jury, or some variation of it such as a mixed court of laypersons and professional judges, and other countries consider how best to improve …

Two Weeks At The Old Bailey: Jury Lessons From England (Symposium Editor), Nancy S. Marder

All Faculty Scholarship

As deeply-rooted as the jury is in the United States, it is not beyond improvement. There is no better starting place for ideas than England, which provided the model for our jury system. To learn firsthand about current jury practices in England, I spent two weeks observing criminal jury trials at the Old Bailey in London. My goal was to examine jury practices at the Old Bailey and to consider which ones could work well in the United States. I observed some jury practices that I thought we should adopt immediately, and others that would work well in the long …

Standing On A Spectrum: Third Party Standing In The United States, Canada, And Australia, Gwendolyn Mckee

Barry Law Review

This article examines third party standing cases in the United States, Canada, and Australia. It demonstrates that third party standing can only be understood with reference to the role of modern courts in broad-based, constitutional style rights protection. This type of protection has been the main factor driving courts to create exceptions to the traditional standing requirements. It is only once these exceptions have been established that a court begins to consider allowing third party standing in cases that do not involve rights. The effects of this theory can be seen in the three countries examined in this article.

Currency Of Love: Customary International Law And The Battle For Same-Sex Marriage In The United States, 14 U. Pa. J.L. & Soc. Change 53 (2011), Sonia Bychkov Green

UIC Law Open Access Faculty Scholarship

No abstract provided.

How Leadership In International Criminal Law Is Shifting From The United States To Europe And Asia: An Analysis Of Spending On And Contributions To International Criminal Courts, 55 St. Louis U. L.J. 953 (2011), Stuart K. Ford

UIC Law Open Access Faculty Scholarship

No abstract provided.

Judicial Retirement And Return To Practice, Mary Clark

Scholarly Articles in Law Reviews & Journals

This Article engages recent scholarly debates about U.S. Supreme Court tenure and retirement practices, specifically those concerning the merits of adopting eighteen-year term limits or mandatory retirement for Supreme Court Justices. It broadens the discussion by including all Article III judges and by addressing former Article III judges’ return to practice following resignation or retirement, which has been largely ignored in the literature to date despite what I have found to be the return-to-practice rate of over forty percent in the last two decades.

This Article advocates retaining life tenure because it promotes institutional and individual judicial independence better than …

Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles

Articles

The law of exclusionary vertical restraints-contractual or other business relationships between vertically related firms-is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices, including predatory pricing, tying, exclusive dealing, price discrimination, and bundling, are treated very differently based on formalistic distinctions that bear no relationship to the practices' exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors: foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity to make …

After The Ecj's West Tankers: The Clash Of Civilizations On The Issue Of An Anti-Suit Injunction, Grace Gunah Kim

Cardozo Journal of Conflict Resolution

This Note argues that the ECJ's West Tankers decision to ban an anti-suit injunction in Europe, coupled with the recent European Commission's reform proposals to govern arbitration within the jurisdictional framework of the Brussels Regulation No. 44/ 2001 ("Brussels Regulation"), directly clash with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention") and practically amount to a blanket rule that bars English courts from upholding arbitration agreements.

The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

Customary International Law As U.S. Law: A Critique Of The Revisionist And Intermediate Positions And A Defense Of The Modern Position, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. The amendment's exclusion of Sharia law has garnered most of the media attention, but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, but others barring consideration of international law as well. These measures are clearly unconstitutional insofar as they …