Conflict of Laws Commons^™

The Singapore Convention: Reflections On Articles 1.3 On Scope, 8.1(B) On Reservations, And 12 On Regional Economic Integration Organizations, Norel Rosner

Cardozo Journal of Conflict Resolution

The General Assembly of the United Nations adopted on 20 December 2018 the United Nations Convention on International Settlement Agreements Resulting from Mediation (the "Convention"). The Convention opened for signature in Singapore in August 2019. The UN adoption marks the culmination of a process that started in 2014 at the United Nations Commission on International Trade Law ("UNCITRAL"), first with discussions on the proposal to take up this project and then, as of September 2015, on the actual principles, form, and text of the instruments to be drafted. The Convention was drafted in conjunction with a Model. Law that contains …

Reservations In The Singapore Convention-Helping To Make The "New York Dream" Come True, Itai Apter, Coral Henig Muchnik

Cardozo Journal of Conflict Resolution

Following a brief introduction of the Singapore Convention, this article discusses the concept of reservations in international law and the importance of such mechanisms for facilitating adherence to multilateral treaties. It then focuses on two elements of the reservation mechanism including their drafting history, purposes, and consequences. In the final section of the article, we explain how these reservations will likely constitute a key component to the success of the Singapore Convention.

Airlines Aren’T Just Carrying Passengers And Cargo Anymore—They’Re Also Carrying The Burden Of The American Conflict Of Laws System, Kaylee Knowlton Henson

Journal of Air Law and Commerce

This Comment begins by walking through the current conflict of laws system in the United States and explores the application of general conflict of laws rules and three major issues that accompany the current system, which leaves conflict of laws rules in the hands of state legislatures to determine. The Comment then moves to conflict of laws in aviation cases specifically and explains the unique nature of the aviation industry and why such regulation is needed in this field of law. Following, the Comment analyzes Congress’s power under the Commerce Clause to determine whether federal regulation is in fact a …

The Power Of Prevention: The Extent Of Environmental Authority In The Context Of Local Government, Colleen Thrasher, Jeremy Power

Dalhousie Journal of Legal Studies

This article attempts to delineate the scope of a municipality’s legal power within the realm of environmental management. Part one of this article looks at the legal position of a municipal government in the Canadian constitutional framework. The authors note that municipalities are creatures of statute and their available powers are tightly prescribed by legislation. Part two of this article is a case study of the City of Toronto's efforts to manage pollution in the Great Lake region, particularly with respect to Lake Ontario. Despite the limits to a municipality’s power, the authors argue that many effective pollution prevention strategies …

Choice Of Law And The Right Of Publicity: Rethinking The Domicile Rule, Mary Lafrance

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Speech Across Borders, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

As both governments and tech companies seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to take down or delink material in a geographically segmented way? Or can and should tech companies be ordered to takedown or delink unsavory content across their entire platforms—no matter who is posting the material or where the unwanted content is viewed? How do we deal with conflicting speech norms across borders? And how do we protect against the most censor-prone nation effectively setting global speech rules? These questions were …

Opening Remarks: The Federalism Dimension Of Constitutional Property, Stewart E. Sterk

Articles

No abstract provided.

42 U.S.C. § 1981’S Equal Benefit Clause: Debating The Application To Private Actor Discrimination, Lauren Pope

Northwestern Journal of Law & Social Policy

No abstract provided.

A Rule-Based Method For Comparing Corporate Laws, Lynn M. Lopucki

Notre Dame Law Review

Part I explains the processes for specifying a Scenario. It introduces the Scenario that will serve as the illustration in the remainder of this Article—a comparison of the liability of directors for the exercise of poor judgment in a Delaware corporation with the corresponding liability in a United Kingdom public limited company. Part II explains and illustrates the necessity of selecting specific entity types for comparison. Part III describes and illustrates the method for resolving the Scenario in both jurisdictions. Part IV explains and illustrates the novel process for close comparison—the extraction, juxtaposition, and comparison of decisional rules from the …

Murphy V. Ncaa: The Supreme Court's Latest Advance In Chemerinsky's "Federalism Revolution", Jonathan O. Ballard Jr.

Loyola of Los Angeles Law Review

No abstract provided.

Legislative Committee Systems: A Design Perspective, Chase Stoddard

Indiana Journal of Constitutional Design

Committees are the defining characteristic of the modern legislature. While the centrality and study of party politics goes back further than committee politics, the focus on committee systems emerged over the course of the twentieth century, and legislatures could not function as we understand them without this mechanism. The United States Congressional committee system is the most studied system, yet virtually every country utilizes a committee system of some sort within its legislature. Despite their ubiquity in and centrality to the operations of legislatures, committees remain insufficiently studied, especially outside of the United States. The existing body of work tends …

The Devious Debtor: 11 U.S.C. § 523(A)(2)(B) And The Need For A More Equitable Outcome, Torie Levine

Brooklyn Journal of Corporate, Financial & Commercial Law

Section 523(a)(2)(A) of the Bankruptcy Code prohibits debtors from discharging debts for money, property, services, or credit obtained by false pretenses, a false representation, or actual fraud other than a statement respecting the debtor’s financial condition. Under § 523(a)(2)(B), if those debts are obtained by a statement respecting the debtor’s financial condition, then the statement must be in writing for the debt to be discharged. A conflict among the circuit courts arose as to whether a statement about a single asset can be a statement respecting the debtor’s financial condition. The majority of the courts applied a narrow interpretation to …

A Fox In The Henhouse: Applying California's Delayed Discovery Rule In Federal Court, Samuel Donohue

Loyola of Los Angeles Law Review

No abstract provided.

Weed Wars: Winning The Fight Against Marijuana Spillover From Neighboring States, Jessica Berch

Nevada Law Journal

Today, a ‘novel social and economic experiment[]’ involving the sale, use, and distribution of marijuana is sweeping the nation. Despite a federal ban on the drug, states have begun to legalize medical and even recreational marijuana use. While these entrepreneurial states push forward with marijuana legalization, other states and the federal government remain opposed to the expansion of marijuana use or its legalization in any form.

Regardless of one’s position on the merits of marijuana legalization, the federalism and conflict-of-laws issues that arise from this multi-state experiment deserve scholarly attention. In particular, non-legalizing states that border more permissive neighbors have …

Im Skaugen Se V Man Diesel & Turbo Se [2018] Sghc 123, Adeline Chong

Research Collection Yong Pung How School Of Law

In IM Skaugen SE v MAN Diesel & Turbo SE [2018] SGHC 123, the Singapore High Court had the occasion to discuss and resolve various meaty private international law issues. The facts concerned the alleged negligent or fraudulent misrepresentation by the defendants on the fuel consumption of a specific model of engine that was sold and installed into ships owned by the plaintiffs. The issue before the court was whether the Singapore courts had jurisdiction over the misrepresentation claim. The defendants were German and Norwegian incorporated companies so the plaintiffs applied for leave to serve the writ out of Singapore. …

U.S. Conflict Of Laws Involving International Estates And Marital Property: A Critical Analysis Of "Estate Of Charania V. Shulman", Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

A number of states, as well as foreign jurisdictions, impose a community property regime. Under this regime, regardless of the title to property, each spouse is deemed to own a fifty percent interest in assets. When a spouse dies owning property in his own name, the tendency is to treat him as the owner of the asset in full for purposes of the power to dispose of the asset and for transfer tax purposes. However, if the property is community property, then the decedent 's power to dispose of it, and the portion of the property subject to taxation, is …

Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley

Texas A&M Law Review

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather …

Habitual Residence V. Domicile: A Challenge Facing American Conflicts Of Laws, Mo Zhang

Maine Law Review

Habitual residence has now become an internationally accepted connecting factor in conflict of laws and is widely being used as an alternative to, or replacement of, domicile. This concept, however, remains remote to American conflict of laws. Although the use of habitual residence in the U.S. courts is mandated by the codification of the Hague Child Abduction Convention, there is still a lack of general acceptance in American conflict of law literature. The Article argues that habitual residence should be adopted as a conflict of law connecting factor in American conflict of laws, and it would be unwise for the …

Standing In The Way Of Our Goals: How The Best Interest Of The Child (Whatever That Means) Is Never Reached In Texas Due To Lack Of Standing For Third-Party Parents, Jessica Nation Holtman

Texas A&M Law Review

Currently in Texas, standing options for third-party nonparents seeking to file suits affecting the parent-child relationship (“SAPCRs”) are extremely limited. And, even though the standing options are codified, the evidence necessary to meet the threshold elements may be drastically different depending on the case’s location. These third parties, who have previously exercised parental responsibilities, must make showings to the court that most divorced parents could not make; and this is just for a chance to bring a claim in court. While this seems unfair, and Texas should absolutely resolve the split among its appellate courts, there is one extremely important …

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not aimed at prohibiting bribes …

A Theoretical Perspective Of The Public Policy Doctrine In The Conflict Of Laws, Kenny Chng

Research Collection Yong Pung How School Of Law

The public policy doctrine in the conflict of laws hasbeen often characterised as uncertain and ambiguous. This article aims toexamine the doctrine at common law from a theoretical perspective in order to:first, determine whether the substantive considerations which courts haveinvoked under the public policy doctrine are theoretically justifiable; second,discern principled boundaries around the courts’ exercise of the defence. Througha study of case law and an examination from first principles of the normativebasis for the recognition of foreign laws and judgments, this article proposesa set of principles that can form the theoretical underpinning of the publicpolicy doctrine, and will examine how …

Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta

Public Land & Resources Law Review

In Navajo Nation v. Department of the Interior, the Navajo Nation challenged the Department of the Interior’s 2001 and 2008 water allocation guidelines and asserted that under NEPA and the APA the guidelines violated the Navajo Nation’s water rights. The Navajo Nation also asserted a breach of trust claim against the United States. After nearly a decade of attempted settlement negotiations, the Navajo Nation reasserted its complaints. The District Court for the District of Arizona denied the Navajo Nation’s motions, and the Navajo Nation appealed to the Ninth Circuit Court of Appeals, which determined the Navajo Nation lacked standing, …

Sentencing Enhancement For Aggravating Role: The Need For The Numerosity Test As The Legal Standard For The "Otherwise Extensive" Criminal Activity Determination, Nicole Borczyk

Journal of Legislation

No abstract provided.

Interpersonal Human Rights, Hanoch Dagan, Avihay Dorfmann

Cornell International Law Journal

Our increasingly globalized environment, typified by the significant role of transnational interactions, raises urgent concerns about the commission of grave transnational wrongs. Two main legal strategies— belonging, respectively, to public and private international law— offer important directions for addressing these urgent concerns. One strategy extends state obligations under human rights law to some non-state actors; the other adapts traditional private international law doctrines, notably its public policy exception. Both strategies make important advances, yet both face significant difficulties, which are all fundamentally rooted in what we call “the missing link of privity”— namely, identifying the reason for imposing the burden …

Competing Sovereignty And Laws’ Domains, Paul B. Stephan

Pepperdine Law Review

We live in a world of multiple sovereignties. Many think of nation-states as the principal sovereign actors, but sovereign substates and international institutions created by states also hold sway. Each claims a domain, an area (spatial, temporal, conceptual) over which it rules. Ruling includes adopting and applying law. When domains overlap, laws can clash. Competition among sovereigns over legal domains poses a challenge to people who take law into account as they live their lives and plan their futures. What makes these issues immediately important is the growth of the international-law enterprise over the last quarter-century. Both the ambitions and …

Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten

Michigan Law Review

It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects “vindication of the public justice” rather than “reparation to one aggrieved.” Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no …

Choice Of Law In Ohio: Two Steps Routinely Missed, Richard S. Walinski

Akron Law Review

At last tally, courts in fewer than half of the states look to the Restatement (Second) Conflict of Laws for any part of their choice-of-law rules. Ohio, however, is in the minority that does. In fact, Ohio has endorsed the Restatement (Second) with surprising enthusiasm. The Supreme Court of Ohio took the unusual step of announcing in 1984 and again in 2007 that it has “adopted” the Restatement (Second) “in its entirety” for resolution of all conflict-of-law questions that arise in this state.

Despite the court’s wholesale endorsement of the Restatement (Second), the courts of Ohio—including the supreme court itself—do …

The Times They Are A-Changin': Innovation In The Modern Music Festival, Molly R. Madonia

Marquette Intellectual Property Law Review

Musical festivals are, and have always been, a way for friends and families to gather together to celebrate the latest and greatest in music, food, and entertainment. From large festivals in major metropolitan cities to small, intimate shows, music festivals have long been a source of enjoyment to music fans and a source of inspiration to up-and-coming musicians. This Article will explore innovation within the modern music festival, including legal, political, and operational changes that affect festivals across the country. So, as Emerson, Lake, and Palmer so eloquently expressed, “Welcome back my friends to the show that never ends, we’re …

Congress Does Not Hide Elephants In Mouse-Holes: How Vimeo Paid No Heed To That Caution, Mitch Bailey

Marquette Intellectual Property Law Review

With the passage of the 1976 Copyright Act, sound recordings fixed prior to February 15, 1972 remained under the protection of the state copyright laws where the works were registered. Some incredible culturally significant songs were fixed before February 15, 1972, including songs from “The Beatles, The Supremes, Elvis Presley, Aretha Franklin, Barbara Streisand, and Marvin Gaye.” To date, state law protects the owner’s rights without interference from federal law, including the Digital Millennium Copyright Act (“DMCA”).

Given its location, the Second Circuit significantly influenced the development of intellectual property law in the United States, especially copyright law. Many businesses …

The Erie Doctrine: A Flowchart, Michael S. Green

Faculty Publications

No abstract provided.