Conflict of Laws Commons^™

Is There A Curricular Core For The Transnational Lawyer?, Michael Bogdan

Journal of Legal Education

No abstract provided.

Abu Ghraib, Diane Marie Amann

Scholarly Works

This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …

Ambiguity, Sovereignty And Identity In Ireland: Peace And Transition, James J. Friedberg

Faculty & Staff Scholarship

No abstract provided.

Editors' Introduction, Journal Editor

Vanderbilt Journal of Transnational Law

The following symposium contains articles based on papers presented at the Annual Meeting of the Association of American Law Schools, Section on Conflict of Laws, in New Orleans, Louisiana, January 6, 1995. The Section's program, Conflict of Laws in the Global Village: International Conflicts Issues for the General Course in Conflict of Laws, was organized by Professor Harold G. Maier of Vanderbilt University Law School, who was Chair of the Conflicts Section. The program was designed to identify and discuss current international conflict of laws issues that might fruitfully be explored in the general course on Conflict of Laws.

Why Teach International Family Law In Conflicts?, William L. Reynolds

Faculty Scholarship

[The author] sets forth a challenge to conflicts professors: to teach international family law in their conflict of laws classes. At present, many conflicts professors avoid teaching international family law, in part because the study of this subject is complicated by several statutes addressing particularly difficult issues. Ignorning international family law is unwise, because many United States citizens and lawyers are likely to confront such problems.

The 1994 Inter-American Convention On The Law Applicable To International Contracts, And Trends For The 1990s, Harold S. Burman

Vanderbilt Journal of Transnational Law

This Article emphasizes the importance of teaching transnational materials in the conflict of laws class. The rapid development of the "global village" has increased the importance and need for law students to understand how conflicts issues are resolved throughout the world. A failure to address transnational issues will leave students unprepared for the world, especially the legal marketplace, that they will enter after law school.

The author suggests that the traditional study of public international law, regarding the law governing relations between states, as well as the law between states and intergovernmental and nongovernmental organizations, is insufficient for contemporary law …

Professor Lowenfeld Responds, Andreas F. Lowenfeld

Vanderbilt Journal of Transnational Law

Professor Silberman is as usual gracious in acknowledging my writings in various formats, and my efforts to restore conflict of laws to its place as a branch of international law, a place it has occupied in most of the world outside the United States, and occupied here as well in the view of Story and others who wrote before the balkanization of American law in the latter part of the nineteenth century. We have no disagreements on the value of the comparative method in teaching conflict of laws, civil procedure, or international litigation.

This brief response is addressed only to …

Why Teach International Family Law In Conflicts?, William L. Reynolds

Vanderbilt Journal of Transnational Law

Professor Reynolds sets forth a challenge to conflicts professors: to teach international family law in their conflict of laws classes. At present, many conflicts professors avoid teaching international family law, in part because the study of this subject is complicated by several statutes addressing particularly difficult issues. Ignoring international family law is unwise, because many United States citizens and lawyers are likely to confront such problems.

Moreover, this Article suggests several additional reasons for including international family law in the general conflicts course. First, litigants entangled in divorce and custody proceedings with international complications face high financial and emotional costs; …

The Internationalization Of Contractual Conflicts Law, Patrick J. Borchers

Vanderbilt Journal of Transnational Law

Professor Borchers maintains that United States conflict of laws rules regarding contracts have long had an international character. This Article reviews the development of contractual conflicts law and examines how, through Joseph Story's treatises, the United States law in this area assumed an international perspective.

These international influences have played and will increasingly play an important role in the development of U.S. contractual conflicts rules. This influence can be seen in both choice-of-forum and choice-of-law agreements. Both have been upheld by U.S. courts initially in international cases, which presented starker contrasts in choice of law or choice of forum. Once …

The Invasion Of Panama Was A Lawful Response To Tyranny, Anthony D'Amato

Faculty Working Papers

The Grenada and Panama interventions contributed to the momentum of popular sovereignty. Not only did the United States remove tyrannical leaders from those two countries, but more importantly it set an example that has undoubtedly shaken other ruling elites that enjoy tyrannical control in their own countries. For even if some of those entrenched elites regard themselves as secure against popular uprising in their own countries (usually by the application of torture and brutality against political dissidents), they cannot now feel totally insulated against foreign humanitarian intervention. Thus, Grenada and Panama may very well act as catalysts in the current …

Nicaragua And International Law: The "Academic" And The "Real", Anthony D'Amato

Faculty Working Papers

Discusses questions about U.S. policy raised by the proceedings of the Nicaragua case. Was the United States within the exercise of its "inherent right of self defense"? Was the matter a political question for resolution by the Security Council and not suitable for adjudication by the International Court of Justice?

Duties And Powers Respecting Foreign Crimes, Daniel H. Derby

Scholarly Works

No abstract provided.

Recent Decisions, Susan A. Shands

Vanderbilt Journal of Transnational Law

This case presented the district and circuit courts with the problem of how to maneuver the forum's conflict of laws rules in order to apply Texas law to an injury caused by a defective product manufactured in Texas when the injury occurred on foreign soil. On a policy basis, the lower courts did make the more equitable decision in applying Texas law. Viewed under one commentator's test, both lower courts were applying the law that would give the most predictable and uniform results, maintain international and interstate order, simplify the judicial task, advance the forum's interest, and apply the better …

Manifest Intent And The Generation By Treaty Of Customary Rules Of International Law, Anthony D'Amato

Faculty Working Papers

I shall argue in this essay that the World Court used a method which might be called the rule of manifest intent in the North Sea Continental Shelf Cases, that this method differs from a more traditional approach found in the writings of publicists, and that this new method accords well with the growing need to objectify and place upon a scientific basis the methodology by which one may determine what in fact are the rules of customary law.

Vietnam And Public International Law, Anthony D'Amato

Faculty Working Papers

With each international crisis inevitably come the self­styled "realists" proclaiming that there is no such thing as public international law. The Vietnam war is no exception, although here, due to the unusual complexity of the facts and the controversy over the applicable rules of international law, many of the published replies to the "realist's" positions have themselves been insubstantial and unconvincing. Let us look first, briefly, at the arguments of one of the realists, and then, with equal brevity, at some of the counterclaims. The remainder of this comment will be addressed to the larger issues involved and some suggested …

War Crimes And Vietnam: The "Nuremberg Defense" And The Military Service Resister, Anthony D'Amato, Harvey . L. Gould, Larry D. Woods

Faculty Working Papers

We have attempted to establish first that the international laws of warfare are part of American law, and have argued that these laws, when taken as prohibitions of specific methods of waging war, are a practical and effective means of controlling unnecessary suffering and destruction. Second, we have analyzed these laws as they apply to treatment of prisoners of war, aerial bombardment of nonmilitary targets, and chemical and biological warfare, and have marshalled a portion of the available evidence that American forces commit war crimes in Vietnam. Third, we have discussed the defenses of tu quoque, reprisal, military necessity, superior …

Elliott Evans Cheatham, Willis L.M. Reese

Vanderbilt Law Review

Cheatham has made a marked imprint through his teaching and his writing on five areas of the law: international law, property, legal education, the legal profession, and conflict of laws. Of these, the legal profession is probably the field where his influence has been most deeply felt. Indeed, it is largely because of his ground-breaking casebook that the subject figures so prominently today in law school curriculums. Likewise, his Carpentier Lectures of a few years ago on "A Lawyer When Needed" provided the entering wedge into a subject that is of great contemporary significance. What Cheatham has done in the …

Legal Aspects Of The French Nuclear Tests, Anthony D'Amato

Faculty Working Papers

Even at the level of scholarly or diplomatic argumentation it is important to inquire into the competing interests and legal factors involved in the atmospheric tests. This is true not only because differing political expectations or even measures might depend on the consensus as to the legality or illegality of the French tests, but also because the precedential value of the tests will be of greater or less force depending upon whether there is agreement at the time of the tests that France was or was not acting within her international legal rights.

The Inductive Approach Revisited, Anthony D'Amato

Faculty Working Papers

A significant theoretical dispute has opened between Schwarzenberger and Jenks over the former's inductive approach to international law. At least three questions may be asked of the debate between Schwarzenberger and Jenks: (1) Is the inductive method inherently limited in its usefulness? (2) Given the use of an inductive approach, is there any room left for creativity in international law? (3) More basically, is Schwarzenberger's self-styled inductive approach really inductive?

The Neo-Positivist Concept Of International Law, Anthony D'Amato

Faculty Working Papers

The question "Is international law really law?" has not proved troublesome, according to Hart, because "a trivial question about the meaning of words has been mistaken for a serious question about the nature of things." Hart defends international law in Bentham's terms as "sufficiently analogous" to municipal law. It is important to see in what way this analogy is viewed by Hart in order to determine whether the reasoning he offers is too high a price to pay for accepting a neo-positivist into the circle of those who hold that international law is really law.

Treaties As A Source Of General Rules Of International Law, Anthony D'Amato

Faculty Working Papers

Attempts a theoretical explanation of the power of treaties to extend their rules to nations not parties to them—to rationalize, in a nonpejorative use of that term, the Court's citation of the Bancroft treaties in Nottebohm and its use of treaty provisions in other cases—and to provide a basis for the continued use of the contents of treaties in assessing the requirements of international law. Thus this paper is basically argumentative—it attempts to state what the law ought to be by demonstrating that the law as it is logically compels the adoption of the present thesis