Transnational Law Commons^™

The Alien Tort Statute As Transnational Law, Jaye Ellis

Maryland Journal of International Law

No abstract provided.

Dynamic Governance Innovation, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

This article frames environmentally sound innovation in the context of transnational network theory with the goal of setting forth a preliminary framework for international legal policy coherence. I consider how network dynamics can facilitate broad diffusion of environmentally sound technologies, concluding that what appears to be fragmented trade, environment, and human rights regimes are indeed sustainable development building blocks with which to achieve dynamic governance. Collaborative environmentally sound innovation networking may be able to shepherd whole renewable energy sectors across the innovation valley of death and help turn a global responsibility to ramp up green technology into a global initiative …

Lochner Disembedded: The Anxieties Of Law In A Global Context, Peer Zumbansen

Indiana Journal of Global Legal Studies

This paper explores, in an inevitably cursory manner, some of the main challenges facing a legal theory of transnational governance today. In part building on and responding to William Twining's identification of key problems of law in a global context (2009; 2012), the following paper adopts a two-fold approach. One element is to suggest a conceptual architecture, which captures law in its transformational state through a focus on actors, norms, and processes. Second, the paper proposes case

studies as a central methodological device to explore the nature, scope, and function of governance-both legal and nonlegal-in a global context. Through the …

Conceptions Of Civil Society In International Lawmaking And Implementation: A Theoretical Framework, Laura Pedraza-Farina

Michigan Journal of International Law

The last two decades have seen an unprecedented explosion in the number of civil society organizations seeking to influence national and international policy making and implementation. Global leaders, activists, scholars, and policy experts have increasingly called for the inclusion of civil society in international governance and in the national implementation of international commitments. Most recently, the wave of civil uprisings that swept the Middle East and North Africa has put fostering civil society participation high on the agenda of national governments and international organizations. Indeed, most international organizations have devised mechanisms to engage with civil society and regard civil society …

Courts Of Appeal And Colonialism In The British Caribbean: A Case For The Caribbean Court Of Justice, Ezekiel Rediker

Michigan Journal of International Law

In recent years, a public debate on law and the colonial legacy has engaged people of all walks of life in the English Speaking Caribbean (ESC), from judges and politicians to young people in the streets. Throughout the ESC, the Judicial Committee of the Privy Council (JCPC)—based in London and composed of British jurists—has been the highest court of appeal since the colonial era. In the past decade, however, Caribbean governments have sought greater control over their legal systems. In 2005, they created the Caribbean Court of Justice (CCJ) to supplant the British Privy Council as the Supreme Court for …

Dreaming Denationalized Law: Scholarship On Autonomous International Arbitration As Utopian Literature, Ralf Michaels

Faculty Scholarship

A completely denationalised law is of course a utopia. But it is a utopia not just in the broad sense of being unrealistic, at least for the present, and perhaps also for the future. No, it is a utopia in the very literal sense of the word. Recall what utopia means in Greek: no place. Delocalised arbitration, non-state law, is, quite literally, no-place law. It thus makes up a utopia in the central meaning of the term.

International Commercial Arbitration should be just about money. But its scholarship is full of invocations of dreams, visions, faith, utopia. These are not …

Masthead, Volume 38 (2013)

Canada-United States Law Journal

No abstract provided.

Volume 38, Canada-United States Law Journal

Canada-United States Law Journal

No abstract provided.

Consular Notification For Dual Nationals, 38 S. Ill. U. L.J. 73 (2013), Mark E. Wojcik

UIC Law Open Access Faculty Scholarship

In a case against the United States brought before the International Court of Justice (ICJ), Mexico sought to protect the rights of fifty-four Mexican nationals who had been arrested in the United States for various crimes and put on trial without being informed of their rights under the Vienna Convention on Consular Relations (VCCR). These fifty-four Mexican nationals all faced the death penalty in various states of the United States. Shortly after filing its case in Avena and Other Mexican Nationals, however, Mexico dropped from the case one Mexican national who was also a citizen of the United States. The …

Comparing Apples And Oranges In Trademark Law: Challenging International And Constitutional Validity Of Plain Packaging Of Tobacco Products, 13 J. Marshall Rev. Intell. Prop. L. 130 (2013), Sarah A. Hinchliffe

UIC Review of Intellectual Property Law

Plain packaging, a new tobacco control tool being considered by a growing number of countries, mandates the removal of all attractive and promotional aspects of tobacco product packages. As a result of plain packaging, the only authorized feature remaining on a tobacco package is the brand name, displayed in a standardized font, size, color, and location on the package. At issue is the meaning of “use” of trademarks on plain packaging, and whether plain packaging amounts to the creation of an invalid encumbrance. The tobacco industry and other regulated sectors (including wine, fast-food, and pharmaceuticals) also believe that plain packaging …

Who Governs? Delegations In Global Trade Lawmaking, Terence C. Halliday, Josh Pacewicz, Susan Block-Lieb

Faculty Scholarship

Who governs international trade law regimes? Although this question has attracted much research for global regulatory regimes, very little is known about international trade law organizations which function as global legislatures. This paper focuses on hitherto invisible attributes of the inner core of global legislators - the state and non-state delegations and delegations that create global norms for private international trade law through the most prominent global trade legislature, the United Nations Commission on International Trade Law (UNCITRAL). Based on ten years of fieldwork, extensive interviews, and unique data on delegation attendance and participation in UNCITRAL’s Working Group on Insolvency, …

Hydraulic Fracturing And Water Management In The Great Lakes, Nicholas Schroeck, Stephanie Karisny

Law Faculty Research Publications

No abstract provided.

The Emerging Restrictions On Sovereign Immunity: Peremptory Norms Of International Law, The U.N. Charter, And The Application Of Modern Communications Theory, Winston P. Nagan, Joshua L. Root

UF Law Faculty Publications

The article provides a fresh re-examination of the conceptual foundations of the sovereign immunity doctrine in the light of the changing character of sovereignty itself. This is done in the context of the changing expectations in international law generated by the UN Charter, and the development of human rights and humanitarian law. The article applies the innovative communications theories generated by the New Haven School to provide a more realistic and relevant approach to the issue of international law-making in this area. The article provides an overview of the emergence of changed expectations relating to the restrictions on the scope …

From Opera To Real Democracy: Popular Constitutionalism And Web 2.0, Elizabeth Dale

UF Law Faculty Publications

On March 17, 2011 the conductor Riccardo Muti stood in the orchestra pit at the Teatro dell’Opera di Roma and, in the presence of the Italian Prime Minister, Silvio Berlusconi, and the Italian President, Giorgio Napolitano, denounced the Italian government’s cuts to funding for the arts and culture. He then invited the entire audience to join the opera’s chorus in an encore of Va’ Pensiero, the hymn of the Hebrew slaves in Nabucco, to protest the cuts. Within two days of the sing-a-long, the Italian government reversed the course it set more than ten months before and agreed to a …

Business Lawyering In The Crowdfunding Era, John Macleod Heminway

American University Business Law Review

No abstract provided.

The State Of Lawyer Knowledge Under The Model Rules Of Professional Conduct, George M. Cohen

American University Business Law Review

No abstract provided.

The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf

Scholarly Works

U.S. asylum law is based on a domestic statute that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum provisions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. This Article highlights this significant omission and urges courts to examine the interpretations of other States Parties to the Protocol in asylum cases. Using as an example the current debate over social …

The Alien Tort Statute And The Law Of Nations In Kiobel And Beyond, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

In Kiobel v. Royal Dutch Petroleum the U.S. Supreme Court wrongly applied a presumption against extraterritoriality to claims authorized by the Alien Tort Statute (ATS). Even assuming such a presumption properly could extend to the ATS and claims authorized thereunder, the presumption is easily overcome by Congress’s unambiguous instruction that the statute encompasses violations of “the law of nations,” which includes both substantive and jurisdictional components — including principles of extraterritorial jurisdiction. Early 19th Century case law and congressional reaction thereto clearly demonstrate that Congress expressly invoked “the law of nations” to overturn the Court’s imposition of a limiting presumption …

State Court International Human Rights Litigation: A Concerning Trend?, Austen L. Parrish

Articles by Maurer Faculty

The brief symposium contribution explores human rights litigation in U.S. state courts under state law. Faced with higher hurdles to successfully asserting Alien Tort Statute claims in U.S. courts and reluctant to re-embrace more traditional international lawmaking, human rights advocates have begun to experiment with alternative strategies for redressing human rights violations. One strategy involves state court litigation. Some commentators believe that state courts may prove more amenable to enforcing and advancing human rights. This symposium contribution explores the parallels between the recent willingness to consider state court litigation to remedy human rights violations occurring abroad and other state court …

Solving "The Gravest Natural Resource Shortage You've Never Heard Of": Applying Transnational New Governance To The Phosphate Industry, Chelsae R. Johansen

Vanderbilt Journal of Transnational Law

Experts believe that global reserves of phosphates, an essential and irreplaceable ingredient in fertilizers, will only last another fifty to one hundred years. Although the consequences of a phosphate shortage include a global famine and decreased world population, the phosphate industry today operates with little concern for sustainable mining and use of the resource. Because the current system of international governance is neither raising awareness of the looming phosphate shortage nor incentivizing phosphate-industry members to act sustainably, the future of phosphates and of food security depend on a decentralized system of internal industry governance known as Transnational New Governance. This …

Truth Commission Impact: A Participation-Based Implementation Agenda, Tara J. Melish

Journal Articles

With a focus on truth commissions, this Essay argues for a new approach to assessing the impact or effectiveness of transitional justice mechanisms. It recognizes at least four discernible approaches to impact assessment in the current literature. I term these “Quantifiable Truth,” “Victim Perception,” “Formal Political Rights,” and “Redistributive Development.” While each has added important and complementary insights to the field, each has also exhibited important weaknesses in its ability to speak persuasively to the question of meaningful long-term impact on the societal dynamics and institutions that lead to violence in the first place. To help fill this gap, I …

The Movement Of U.S. Criminal And Administrative Law: Processes Of Transplanting And Translating, Toby S. Goldbach, Benjamin Brake, Peter J. Katzenstein

All Faculty Publications

This article examines the transplanting and translating of law in the domains of criminal procedure and administrative law. The transnational movement of law is full of unexpected twists and turns that belie the notion of the United States as a legal behemoth. Furthermore, the movement of legal procedures which occurs both within and across countries with common and civil law legal traditions challenges preconceived notions of an orderly divide between legal families. While the spread of elements of the U.S. jury system and methods of plea bargaining reveals the powerful influence of U.S. legal ideas, the ways that these procedures …

Beyond Regulation: A Comparative Look At State-Centric Corporate Social Responsibility And The Law In China, Virginia H. Ho

Vanderbilt Journal of Transnational Law

Corporate social responsibility (CSR) is often understood as the voluntary actions firms take beyond legal compliance. However, in recent years, governments around the world have also begun to actively promote CSR, reflecting broader governance trends that embrace "soft law," quasi-voluntary standards, and other novel incentives to move companies toward and beyond minimum regulatory goals. Comparative legal scholarship has only recently begun to consider the intersections of these mechanisms with positive law, formal institutions, and traditional regulatory enforcement structures. The adoption of these policies in historically weak regulatory environments raises puzzling questions about their motivation, scope, and potential. As a leader …

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Faculty Scholarship

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …

Report On Usa, Stephen C. Thaman

All Faculty Scholarship

This chapter in the book on transnational inquiries and the protection of fundamental rights in criminal proceedings takes into account the particular, and perhaps unique situation in the United States (US) following the terrorist attacks on 11 September 2001. It explores the laws regulating inquiries by foreign governments who seek evidence in the US to use in criminal proceedings overseas, but primarily the protections recognized by US statutes and jurisprudence when US officials gather evidence abroad. In this respect, the chapter focuses on protections during interrogations, searches, interceptions of confidential communications, and examinations of witnesses and explores when the protection …

The Kiobel Presumption And Extraterritoriality, Sarah H. Cleveland

Faculty Scholarship

With its modem rebirth in Filartiga v. Pena-Irala, the Alien Tort Statute (ATS) held out a potentially transformative promise. By establishing a forum in the United States for a victim of torture that had occurred at the hands of a Paraguayan police inspector in Paraguay, the ATS offered to emancipate the state-centered Westphalian system from a narrow focus on territorial sovereignty, and move toward a more globalized community focused on the protection of universal values. The ATS recognized that modem human rights perpetrators, victims, and violations move easily across borders, and that transnational accountability for such violations is in the …

Inspection And Seizure Of Seizure Of "Armed And Equipped" Somali Pirates: Lessons From The British And American Anti-Slavery Squadrons (1808-1860), John I. Winn

Seattle University Law Review Online

No abstract provided.

Assessing Transnational Private Regulation Of The Otc Derivatives Market: Isda, The Bba, And The Future Of Financial Reform, Gabriel Rauterberg, Andrew Verstein

Faculty Scholarship

For the last twenty years, the dominant narrative of the over-the-counter derivatives market has been one of absent regulation, deregulation, and regulatory conflict, predictably resulting in disaster. This Article challenges this narrative, arguing that the global derivatives market has been subject to pervasive and harmonized regulation by what should be recognized as transnational private regulators. Recognizing the reality of widespread transnational private regulation of derivatives has significant implications, which this Article explores. Appreciating the actual regulatory status quo is essential if policymakers are to correctly diagnose problems, avoid past regulatory errors, and plan effective remedies. There are also advantages to …

Governance Of Global Mobile Money Networks: The Role Of Technical Standards In Mobile Money In Developing Countries, Jane K. Winn

Articles

Mobile money has the potential to be an effective policy instrument for financial inclusion in developing countries, but it also has the potential to fuel money laundering and terrorist financing. The 2012 revised Financial Action Task Force standards attempt to strike a workable balance between the goals of financial inclusion and financial integrity in developing countries. Mobile money schemes are mostly based in national markets, however, and are not normally designed to address the need of poor migrants for cheap, effective cross-border remittance services.

Demand for such cross-border remittance services may drive the development of technical standards to build global …

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …