Courts Commons^™

Different Roads To The Rule Of Law: Their Importance For Law Reform In Taiwan, James Maxeiner

All Faculty Scholarship

Talk of law reform is in the air throughout East Asia. Whether in Beijing or Tokyo or here, law reform is spoken of in terms of strengthening the Rule of Law. But what is the Rule of Law? Different legal systems have different roads to reach the Rule of Law. These different roads are noticeable mainly in the different emphases different systems place on two critical elements in the realization of the Rule of Law State, namely rules and the machinery for implementing the rules, i.e., courts and administrative agencies. The Rule of Law makes demands on both the legal …

Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson

ExpressO

A timely piece proposing solutions for issues certain to be raised in the upcoming trials of the accused Taliban and Al Qaeda operatives captured in Afghanistan and detained on a U.S. military base in Cuba. In the article, I begin by examining the history and jurisdiction of Article I and Article III courts and then address the history and structure of the Al Qaeda and Taliban regimes. After considering the Constitution, federal statutes, politics, and geographical limitations, I conclude that Al Qaeda detainees should be tried in Article III courts under terrorism statutes and Taliban detainees, as military combatants, should …

Compounding The Countermajoritarian Difficulty Through "Plaintiff's Diplomacy": Can The International Criminal Court Provide A Solution?, John B. Fowles

BYU Law Review

No abstract provided.

Cultural Heritage And Identity, Lucille A. Roussin

Cardozo Journal of International and Comparative Law

The article explores the intersection of "cultural property" and "cultural heritage," arguing that while cultural property refers to specific, legally defined objects of historical or scientific significance, cultural heritage encompasses a broader, collective concept tied to identity, history, and public interest. The article highlights how these concepts increasingly overlap, particularly in cases involving restitution, indigenous rights, and the commodification of cultural artifacts. It emphasizes the need for harmonized national and international legal frameworks to address these issues effectively.

The Stateless Corporation Finds A Home: Alienage Jurisdiction And Dependent Overseas Territories - J.P. Morgan Chase Bank V. Traffic Stream (Bvi) Infrastructure Limited, Michael Cornell Dypski

San Diego International Law Journal

The purpose of this Article is to discuss the evolution of the alienage jurisdiction statute and the status of overseas dependent territories in light of the recent Supreme Court decision. Part I of this Article will provide a brief historical background of 28 U.S.C. § 1332 and its purpose. Part II will discuss the concepts of the state and statelessness, as well as the role of dependent territories in international affairs. Part III will discuss and analyze the various federal decisions seemingly at loggerheads with each other on the issue of federal jurisdiction over dependent territories. Finally, Part IV will …

Duty Of Care To The Intoxicated: The Irish Approach, Mary Drennan

San Diego International Law Journal

This Article examines whether the relationship between publican and patron should or should not produce such an obligation. It also addresses the possible defenses to such a claim in the tort of negligence. Finally, as the matter is not a settled point of Irish law, this Article also attempts to assess the potential approach of its courts, in view of the approach taken by the English courts to the issue and the flurry of academic comment in the wake of a recent Irish settlement. These issues are certain to surface in litigation again. Regardless of the approach taken by the …

Trademark Distinctiveness In A Multilingual Context: Harmonization Of The Treatment Of Marks In The European Union And The United States, Eric E. Bowman

San Diego International Law Journal

This Comment will examine the similarities and differences between the trademark protection laws with regard to the multi-cultural nature of the consuming public of the European Union and that of the United States, and then will recommend ways in which the laws can be harmonized to promote the congruent development and expansion of economic activities globally. This harmonization is necessary in light of the interplay between these schemes for protection of marks and the protection provided under the Paris Convention for the Protection of Industrial Property, the Madrid Agreement Concerning the International Registration of Marks, and the Madrid Protocol. The …

The Echr And States Of Emergency: Article 15 - A Domestic Power Of Derogation From Human Rights Obligations, Mohamed M. El Zeidy

San Diego International Law Journal

This study is divided into two sections. The first section is further divided into two subsections. The first subsection examines the problems in defining emergencies; in the second subsection, we will examine the preconditions required for a valid derogation. The second section determines the Strasbourg machinery for the protection of human rights. This section is also divided into four subsections. Each subsection examines separate case laws from the European Court of Human Rights. Finally, a conclusion will be deduced in the light of the former reviews.

Two Case Studies In Self-Determination: The Rock And The Bailiwick, Inge V. Porter

San Diego International Law Journal

After looking at the concept of self-determination, its history, meaning, and possible future development in Part II, this Paper will develop two case studies. Part III examines the right of self-determination for the people of Gibraltar, analyzing the relevant U.N. resolutions, agreements, treaties, and legislation that have defined the dispute between Great Britain and Spain. For example, Great Britain has ruled the Rock of Gibraltar for 280 years, primarily using it as a military base; but, today, Spain insists that it did not relinquish absolute sovereignty over Gibraltar to the British by the Treaty of Utrecht in 1713. Part IV …

Renvoi In Multinational Cases In New York Courts: Does Its Past Preclude Its Future?, Matthew Chait

Cardozo Journal of International and Comparative Law

The doctrine of renvoi, which requires courts to consider both the internal laws and conflict of laws rules of a foreign jurisdiction, has been a contentious issue in New York courts. While cases like In re Tallmadge rejected renvoi due to concerns of creating an endless cycle, In re Schneider embraced it, emphasizing the need to apply the whole law of the foreign jurisdiction. Modern approaches aim to integrate renvoi into interest analysis, focusing on practical applications to ascertain foreign interests accurately and promote reciprocity, while addressing concerns about sovereignty and forum shopping.

Can The U.S. Courts Learn From Failed Terrorist Trials By Military Commission In Turkey And Peru?, Richard Wilson

Human Rights Brief

No abstract provided.

Compliance With Icj Provisional Measure And The Meaning Of Review And Reconsideration Under The Vienna Convention On Consular Relations: Avena And Other Mexican Nationals (Mex. V. U.S.), Linda E. Carter

Michigan Journal of International Law

Many aspects of the Avena case could lead to significant developments, there are two that will be addressed in this essay. The first issue has an immediate impact on the pending executions. What must the United States do to comply with the provisional measures order? What are "all measures necessary"? The second issue will have an impact in later litigation in the cases of the fifty-two Mexican defendants named in Avena and on other future defendants. What must the United States do to provide "review and reconsideration of the conviction and sentence by taking account of the violation of the …

Foreign Judgments In American And English Courts: A Comparative Analysis, Brian Richard Paige

Seattle University Law Review

Part II of this Comment provides some background on the current American scheme of foreign judgment recognition and enforcement by comparing and contrasting its three major components American common law, the Restatement (Third) of Foreign Relations Law, and the Uniform Foreign Money-Judgments Recognition Act. Part III tracks the English scheme of foreign judgment recognition and enforcement from its common law origin to its more sophisticated and streamlined foreign judgment registration system. Finally, Part IV suggests that the United States could benefit from the implementation of federal legislation that would bring foreign judgment registration procedures to American courts and provide for …

Democracy, Judicial Review And The Rule Of Law In The Age Of Terrorism: The Experience Of Israel - A Comparative Perspective, 31 Ga. J. Int'l & Comp. L. 493 (2003), Ralph Ruebner

UIC Law Open Access Faculty Scholarship

No abstract provided.

Introductory Note To U.S. Court Of Appeals For The District Of Columbia Circuit: Nemariam, Et. Al. V. Ethiopia, Roger P. Alford

Journal Articles

Nemariam v. Ethiopia is one of the most important United States decisions to date addressing whether an international tribunal may be an adequate forum for purposes of dismissing pending litigation based on forum non conveniens. The decision essentially suggests that diplomatic espousal claims before international tribunals can never afford claimants an adequate forum justifying dismissal based on forum non conveniens absent some guarantee of individual relief for meritorious claims.

Unexploded Bomb: Voice, Silence And Consequence At The Hague Tribunals -- A Legal And Rhetorical Critique, Timothy W. Waters

Articles by Maurer Faculty

This Article examines the decision by the ICTY Prosecutor not to investigate NATO's bombing campaign during the Kosovo war - and the Prosecutor's unusual decision to publish an Inquiry explaining its reasons. Many scholars have examined the Inquiry, but all have focused on its substantive legal analysis. This Article takes a different approach: It focuses on how the Prosecution reached the conclusion not to investigate. Using rhetorical analysis, it examines the Prosecution's decision-making mindset to see what that indicates about the shape of future international prosecutorial decision-making, including at the ICC.

There is no evidence that the Prosecution succumbed to …

The Functions Of Justice And Anti-Justice In The Peace-Building Process, Paul Williams, Michael Scharff

Scholarly Articles in Law Reviews & Journals

Recently, there has been increasing use of the tool of justice/accountability in the peace-building process. Yet, the norms of justice, while increasingly invoked, is seldom defined in the context of peace-building. To understand the role that justice has played and has the potential of playing in the peace-building process, it is important first to define the norm as well as articulate its functions. This article therefore serves as an introduction to The Case Western Reserve Journal of International Law’s “Role of Justice in Building Peace” Symposium Issue by providing a detailed definitional description of the justice norm. In addition, it …

The Role Of Justice In The Former Yugoslavia: Antidote Or Placebo For Coercive Appeasement?, Paul Williams, Patricia Taft

Scholarly Articles in Law Reviews & Journals

Throughout the 1990's, the approach of the European Union and the United States to the conflicts in the former Yugoslavia was one of coercive appeasement. By most professional and historical accounts, this approach was a failed one, with the consequences that over 250,000 civilians were killed, thousands raped and millions displaced. Throughout the conflict, the institutions of justice created by the international community frequently served as a mere placebo rather than an antidote to the dominant approach of coercive appeasement. Frequently key policymakers actively sought to constrain the role of justice during the peace building process. At times during the …

Pictures At A Global Exhibition, Noah Leavitt

Michigan Journal of International Law

Review of We are the Poors by Ashwin Desai and In America's Court: How a Civil Lawyer Who Likes to Settle Stumbled Into a Criminal Trial by Thomas Geoghegan

American Servicemembers' Protection Act Of 2002, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

On July 1, 2002, the Rome Statute of the International Criminal Court ("ICC") entered into force, establishing the first permanent international criminal tribunal. Although seventy-six countries had ratified the Rome Statute by that date, the United States was not among them. Instead, Congress responded to the creation of the ICC by passing a bill sponsored by House Majority Whip Tom DeLay (R-Tex.) that Republican legislators had been trying to get through the House and Senate for several years. On August 2, 2002, the American Servicemembers' Protection Act of 2002 ("ASPA") became law. The Act was designed to prevent United States …

Advancing U.S. Interests With The International Criminal Court, David J. Scheffer

Vanderbilt Journal of Transnational Law

It is a great pleasure to be here in this beautiful lecture hall at Vanderbilt University Law School and to have the opportunity to speak to you this afternoon about the International Criminal Court (ICC). In recent months, one newspaper or magazine article after another, in examining the foreign policy of the current administration and the gulf (which seems to be so pronounced now) between the United States and even its closest allies throughout the rest of the world, has listed a basic set of treaties as being partly explanatory of that gulf. The Kyoto Protocol, for example, is always …

The Ftaia And Subject Matter Jurisdiction Over Foreign Transactions Under The Antitrust Laws: The New Frontier In Antitrust Litigation, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The aggressive antitrust enforcement activities by the United States Department of Justice Antitrust Division against international cartels in the last decade, coupled with the increasingly global character of commercial markets, have spawned significant private antitrust treble damages litigation in American courts by foreign plaintiffs. Not surprisingly, the jurisdictional reach of the Sherman Act has been a threshold issue in these cases. While jurisdictional questions are not new to American courts, this latest round of antitrust cases has posed novel issues of subject matter jurisdiction, including the extent to which foreign plaintiffs claiming antitrust damages based on foreign transactions may …

Judging Global Justice: Assessing The International Criminal Court, Diane Orentlicher

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Dialectic And Revolution: Confronting Kelsen And Gadamer On Legal Interpretation, Hans Lindahl

Cardozo Law Review

This paper examines the general structure and conditions of legal interpretation that arise from confronting Gadamer's philosophical hermeneutics with a determinate conception of legal interpretation suggested by Kelsen's Pure Theory of Law. The Gadamerian question, "What defines legal interpretation as interpretation?", suggests that Kelsen's reference to legal norms as "schemes of interpretation" must be radicalized: a hermeneutic circularity or dialectic is at work in the law, such that the legal interpretation of reality also changes, to a lesser or greater extent, the principle of interpretation - the legal norm. The Kelsenian question, "What defines interpretation as legal interpretation?", suggests …

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Evolution Of The United Nations Position On Terrorism: From Exempting National Liberation Movements To Criminalizing Terrorism Wherever And By Whomever Committed, Malvina Halberstam

Articles

No abstract provided.

The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley

Scholarly Publications

No abstract provided.

No Longer Safe At Home: Preventing The Misuse Of Federal Common Law Of Foreign Relations As A Defense Tactic In Private Transnational Litigation, Lumen N. Mulligan

Faculty Works

No abstract provided.

Productive Silence On Carl Schmitt: Constrained Ignorance Or Concluded Reappraisal? A Reply To Detlev F. Vagts, Carl Schmitt In Context: Reflections On A Symposium, Emanuel Richter

Cardozo Law Review

No abstract provided.

Uncertain Risk: The United States Military And The International Criminal Court, Christopher M. Van De Kieft

Cardozo Law Review

No abstract provided.