Courts Commons^™

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Saddam Hussein's Trial In Iraq: Fairness, Legitimacy & Alternatives, A Legal Analysis, Christian Eckart

Cornell Law School J.D. Student Research Papers

The paper focuses on Saddam Hussein’s trial in front of the Iraqi High Criminal Court in Baghdad. After providing an overview of the facts surrounding the court’s installation, the applicable international law is identified and the fairness and legitimacy of the current proceedings are analyzed. The paper finishes by considering whether the trial should be relocated and addresses alternative venues that could have been chosen to prosecute Iraq’s ex-dictator.

An Emerging Uniformity For International Law, David H. Moore

ExpressO

The status of international law in the U.S. legal system has been hotly contested. Most international law scholars maintain that customary international law (CIL) is federal common law immediately applicable in federal courts. A minority of scholars has responded that CIL may be applied by federal courts only when authorized by the political branches. The Supreme Court’s decision in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), stoked the debate. In Sosa’s wake, scholars have overwhelmingly concluded that the Supreme Court endorsed the majority view that CIL is federal common law.

This Article asserts that Sosa has been both misperceived …

Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato

ExpressO

Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …

Bringing Human Rights Abusers To Justice In U.S. Courts: Carrying Forward The Legacy Of The Nuremberg Trials, Sandra Coliver

Cardozo Law Review

No abstract provided.

The History Of Slave Marriage In The United States, 39 J. Marshall L. Rev. 299 (2006), Darlene C. Goring

UIC Law Review

No abstract provided.

The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick

All Faculty Scholarship

This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits …

Legal Approaches And The Contributions Of Case Law, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Addressing The Scourge Of Human Trafficking: The Challenge Ahead, Roza Pati

Faculty Articles

No abstract provided.

Triptych: Sectarian Disputes, International Law, And Transnational Tribunals In Drinan's "Can God And Caesar Coexist?", Christopher J. Borgen

Faculty Publications

Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today's systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom.

To what extent …

Courts Of Limited Jurisdiction In A Post-Transition Cuba, Matias F. Travieso-Diaz, Armando A. Musa

Vanderbilt Journal of Transnational Law

Cuba's eventual transition to a free-market society will likely be accompanied by a flood of litigation in areas such as property rights, privatization of state-owned enterprises, and human rights violation claims. Courts of limited jurisdiction should be established to hear these specialized matters and alleviate the burden on regular courts. As the transition unfolds, there will also be a need to create specialized tribunals to handle disputes in areas such as taxation, bankrtupcy, and intellectual property. The creation of the various courts of limited jurisdiction will have to be supported by creative strategies for retraining existing judges, training new ones, …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

Access To U.S. Federal Courts As A Forum For Human Rights Disputes: Pluralism And The Alien Tort Claims Act, Christiana Ochoa

Indiana Journal of Global Legal Studies

Back to Government?: The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts, Symposium. University of Trento, Italy, June 11-12, 2004.

Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger

San Diego International Law Journal

This Article argues that given the unique and significant contribution of journalists to uncovering and documenting war crimes, the ICC should amend its evidentiary rules to recognize a qualified journalist's privilege. In doing so, the ICC should clearly identify who may benefit from such a privilege, clarify a procedure for balancing the need of reportorial testimony against prosecution and defense interests, and, lastly provide for mandatory consultations between the court and affected news organizations or journalists before allowing the issuance of a subpoena. Such clarity will benefit not only journalists working in war zones and the ICC, but will provide …

Moving From Impunity To Accountability In Post-War Liberia: Possibilities, Cautions, And Challenges, Rena L. Scott

ExpressO

Liberia has become the quintessential example of an African failed state. Though Liberia’s civil war is officially over, war criminals are free and some are even helping run the transitional government under the authority of Liberia’s Comprehensive Peace Agreement (CPA). This peace agreement calls for the consideration of a general amnesty for those involved in the Liberian civil war alongside the parceling of governmental functions among members of various rebel groups. The drafters of the agreement claim that this was the only viable solution for sustainable peace in Liberia. Meanwhile, Charles Taylor relaxes in Nigeria’s resort city of Calabar. To …

The Role Of Courts In Preventing International Child Abduction, Deborah M. Zawadzki

Cardozo Journal of International and Comparative Law

The note argues that international child abduction is a growing issue exacerbated by globalization, with existing legal frameworks like the Hague Convention and the International Parental Kidnapping Crime Act (IPKCA) proving insufficient to address the problem. It advocates for a more proactive role for U.S. courts in preventing abductions through legislative support and comprehensive preventative measures, emphasizing the need for state-level reforms, such as Texas’s H.B. 1899, to fill gaps in current laws and protect children at risk

Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan

ExpressO

This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

American Courts Are Drowning In The "Gene Pool": Excavating The Slippery Slope Mechanisms Behind Judicial Endorsement Of Dna Databases, 39 J. Marshall L. Rev. 115 (2005), Meghan Riley

UIC Law Review

No abstract provided.

Plea Bargaining At The International Criminal Tribunal For The Former Yugoslavia, Ralph Henham, Mark Drumbl

Scholarly Articles

The International Criminal Tribunal for the former Yugoslavia (ICTY) increasingly has turned to plea bargains to resolve the cases before it. A number of factors motor this trend. One is administrative: the ICTY has been subject to considerable pressure from the United Nations Security Council and donor states to accelerate its work. Another is the desire to obtain acknowledgements of responsibility from perpetrators. Moreover, there is concern that, as time passes, the memories of witnesses dim. The rigours of direct and cross-examination may retraumatise those who have survived mass atrocity. ICTY judges also have expressed their understanding that guilty pleas …

The Ictr And Justice For Rwandan Women, Mark A. Drumbl

Scholarly Articles

In this article, I hope to spring from the discussion of the ICTR's gender jurisprudence to a broader conversation that touches on the relationship between this jurisprudence and life for Rwandan women today. In particular, I'd like to consider three questions: What do both the gender jurisprudence and the jurisprudence at large of the ICTR mean to women, individually and collectively, in Rwanda? How do other modalities of accountability that operate in postgenocide Rwanda respond to gender violence and promote gender equality? What is the situation of Rwandan women today?

Interim Measures In International Human Rights: Evolution And Harmonization, Jo M. Pasqualucci

Vanderbilt Journal of Transnational Law

In this Article, the Author undertakes a comprehensive study of interim measures ordered in human rights cases before six international enforcement bodies--the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights, the United Nations Human Rights Committee, the United Nations Committee against Torture, and the Inter-American Commission on Human Rights. An order of interim measures may require that the State take positive action, such as providing protection for human rights activists or journalists, or it may call upon the State to refrain from taking action, such as not extraditing a person or delaying …

Hong Kong Right Of Abode: Ng Siu Tung & (And) Others V. Director Of Immigration - Constitutional And Human Rights At The Mercy Of China, Teresa Martin

San Diego International Law Journal

This Comment argues that the Court's refusal to sidestep the Standing Committee's reinterpretation using either the Doctrine of Legitimate Expectation, or the judgments previously rendered clause in the Basic Law, signifies its capitulation to the Standing Committee, and its inability to protect constitutional rights and/or human rights in Hong Kong. This Comment will first give a brief background on the concept of one country, two systems and the drafting of the basic law. Second, it will introduce the Right of Abode cases, and explain the constitutional crisis of 1999. Third, it analyzes Ng Siu Tung & Others v. Director of …

From The Nuremberg Charter To The Rome Statute: Defining The Elements Of Crimes Against Humanity, Mohamed Elewa Badar

San Diego International Law Journal

The purpose of this study is to examine the past and present contours of the prohibition of "crimes against humanity", analyzing and scrutinizing the essential elements of this crime, with a view to obtaining and drawing together basic criteria that could eventually guide the adjudication of this offence. Furthermore, this clarification of "crimes against humanity" is particularly timely with respect to the soon functioning International Criminal Court (ICC).

Soldiers Of Semipalatinsk: Seeking A Theory And Forum For Legal Remedy, Anne Miers Kammer

San Diego International Law Journal

This Comment will address the unique dilemma of individuals in Kazakhstan whose health has been compromised by the former Soviet Union's 40-year period of nuclear testing on what is now Kazakhstan soil. The principal legal analysis of this Comment will focus on the availability of remedies (in the form of monetary damages available through legal resolution) to the citizens and/or state of Kazakhstan, and potential judicial forums in which to seek those remedies. Particular attention will be paid to the comparative likelihood of successful remedial legal action if pursued by a private class of Kazakhstan citizens versus action pursued by …

The Court Of Last Resort: American Indians In The Interamerican Human Rights System - Why American Indians Should Utilize Supranational Courts, Derek De Bakker

Cardozo Journal of International and Comparative Law

The note examines the efforts of Native American groups to seek redress for human rights violations through the Inter-American human rights system, highlighting the limitations of the U.S. legal system in addressing indigenous rights. It focuses on key cases, such as the Yanomani, Miskito, and Dann cases, to illustrate how indigenous peoples are leveraging international mechanisms to assert their rights to land, cultural integrity, and self-determination. The analysis underscores the potential of the Inter-American Commission and Court to set precedents for indigenous rights in the United States.

Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford

ExpressO

The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims …

Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis

ExpressO

Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes.

This article explores …

The European Court Of Human Rights: A Success Story?, Leo F. Zwaak, Therese Cachia

Human Rights Brief

No abstract provided.

Flores V. Southern Peru Copper Corporation: The Second Circuit Fails To Set A Threshold For Corporate Alien Tort Claim Act Liability, Lori D. Johnson

Scholarly Works

In Flores v. Southern Peru Copper Corporation, the U.S. Court of Appeals, Second Circuit, re-examined its Alien Tort Claims Act (ATCA) jurisprudence and assumed that a private domestic company acting in its private capacity could be liable to Peruvian nationals under the ATCA for a wide range of torts under international law, including violations of rights to “life and health.” Previous cases and other Circuits held that only a handful of egregious crimes, when committed by a private individual or corporation, can justify private liability under the ATCA. Rather than abiding by these interpretations, however, the court examined in depth …