Law Commons^™

Legal Standards Governing Pre-Emptive Strikes And Forcible Measures Of Anticipatory Self-Defense Under The U.N. Charter And General International Law, Olumide K. Obayemi

Annual Survey of International & Comparative Law

The thesis of this article argues that while the use of preemptive military strikes, now adopted by the United States against non-state actors and rogue states, appears to be justified under international law, such a military exercise must be subject to well defined and clearly stated international legal rules.

Sovereignty Over Natural Resources Under Examination: The Inter-American System For Human Rights And Natural Resource Allocation, Lila Barrera-Hernández

Annual Survey of International & Comparative Law

The present paper is based on the contention that, by virtue of the impact of resource exploitation on individuals, international human rights' tribunals and bodies, particularly the organs of the Inter-American System, are increasingly in the position of "allocator" of natural resources, giving new meaning to the concept of permanent sovereignty.

A Right To Democracy In International Law: Its Implications For Asia, Same Varayudej

Annual Survey of International & Comparative Law

This paper will first look at the traditional concept of sovereignty and the undemocratic features of traditional international law. It will then discuss the development of democratic governance in the United Nations and regional international organisations, as well as the pro-democratic interventions in international law. Moreover, the paper will critically analyse the recent claims by prominent international legal scholars that a "right to democracy" is now emerging in international law and that all communities are entitled to democratic rules of governance. It will then consider whether, and to what extent, the notion of democratic entitlement has crystallised into a customary …

What's New In The Neighborhood - The Export Of The Dmca In Post-Trips Ftas, Anne Hiaring

Annual Survey of International & Comparative Law

This paper will first discuss the historical use of trade regulation to regulate intellectual property law protection outside the U.S., then will discuss the history of the WIPO Internet Treaties, the implementation of them in the DMCA, the provisions of the Induce Act, and the DMCA derived provisions in the 2003 FTA with Singapore.

Comparing U.S. And E.U. Strategies Against Weapons Of Mass Destruction: Some Legal Consequences, Milagros Alvarez-Verdugo

Annual Survey of International & Comparative Law

International regulation and control of WMD is not a United States - European Union bilateral issue, but it appears on the political agenda of the transatlantic relation and agreements or disagreements between the two have international consequences. Agreements signal joint action by an important part of the international community and, often, can inspire or encourage universal commitments as well as other international actions. Disagreements, however, block such joint action and, sometimes, impede international measures of universal (or at least collective) scope. Within this context, the purpose of this article is to analyze how these two major international actors, the United …

Economic Justification For Sui Generis Databases, Chana Rungrojtanakul

Annual Survey of International & Comparative Law

This article explores important economic mechanisms and competition law that have been used to promote the competitiveness of the database industries. Section II explains fundamental economic theories that lead to an understanding of the concept of an efficient and perfect competition within the database industries. Section III analyzes judicial decisions of the two economic parties, the European Union and the United States of America, that apply competition law to create a fair reproduction and dissemination of factual contents and to prevent unfair competition derived from an attempt to dominate the free flow of contents in the market. Section IV examines …

Applicable Law In International Terrorist Threats And Attacks And The Consequences Of Error In Personam, Somcharti Sucharitkul

Annual Survey of International & Comparative Law

The objective of this paper is neither to reiterate the diversity of definitions nor to corroborate a particular position on the concept of international terrorism but to facilitate the search for the definition of international terrorism, which seems to be of immediate and urgent priority in the context of 21 st century globalization. In my attempt to identify the contemporary core terrorist threat, I will first focus on a model of distinction based on the applicable law in Part I. I will discuss why this model is appropriate and compatible with the trends of international law dealing with international terrorism. …

Fighting The War On Terrorism With The Legal System: A Defense Of Military Commissions, Jessica Erin Tannenbaum

Annual Survey of International & Comparative Law

In early 2002, the United States began transporting prisoners captured in Afghanistan to the naval base at Guantanamo Bay. Almost immediately, an uproar broke out over the detention of prisoners there. The United States was, and continues to be, almost universally criticized by the international community for its handling of the prisoners at Guantanamo Bay. The most common criticisms are of the detention of accused terrorists without charges and the indefinite detention of non-citizens certified as dangers to national security as authorized by the USA PATRIOT Act. Although all of the issues regarding the detention of prisoners in the War …

The Case For Intervention In The Humanitarian Crisis In The Sudan, Leilani F. Battiste

Annual Survey of International & Comparative Law

The humanitarian crisis in Darfur presents one of the greatest challenges to the international community since the coordinated massacre of over 800,000 people in Rwanda in 1994. The mass murder of national, ethnic and tribal groups at the hands of both the Sudanese Government and the pro-Arab, government-backed militias, known as the janjaweed, is deemed responsible for the deaths of tens of thousands of black Sudanese in the region. Despite the unmistakable tragedy that has occurred and continues to occur, the international community has utterly failed to respond. Debate over whether the term "genocide" should be used to describe the …

The International Legal Standards Adopted To Stop The Participation Of Children In Armed Conflicts, Joseph N. Madubuike-Ekwe

Annual Survey of International & Comparative Law

The aim of this paper is to discuss the participation of children in armed conflicts around the world and the various international legal standards adopted to stop it. The paper will first describe the factors that contribute to the involvement of children in armed conflicts. It will examine the relevant international armed conflict (humanitarian) laws and other legal standards governing the use of children in armed conflicts and their effectiveness. The paper will also discuss the United States position on the Global efforts to ban the use of children in armed conflicts. Finally, the paper will discuss the problems of …

Indigenous Peoples, Human Rights And Natural Resource Development: Chile's Mapuche Peoples And The Right To Water, Lila Barrera-Hernández

Annual Survey of International & Comparative Law

This paper is based on the contention, included in the 1997 Proposed American Declaration on the Rights of Indigenous Peoples, that "traditional collective systems for control and use of land, territory and resources, including bodies of water and coastal areas, are a necessary condition for [indigenous peoples'] survival, social organization, development and their individual and collective well-being." It intends to present and analyze some of the issues facing the Mapuche peoples of Chile as they fight to maintain control of water resources in their territories. The right to water is chosen, amongst other human rights also at stake in the …

Making Sense Of State Action, Lauren E. Tribble, John Dorsett Niles, Jennifer N. Wimsatt

Lauren E. Tribble

Perhaps no question of constitutional law is more fundamental than whether the Constitution applies. The Bill of Rights, Fourteenth Amendment, and Fifteenth Amendment protect individuals’ rights from invasion by the state, but they do not protect against private action. Separating “state action” from “private action” thus poses a critical constitutional question, and it is one with which the U.S. Supreme Court has grappled more than seventy times since 1883. Unfortunately, the Court’s state-action rulings provide something less than a model of clarity. Many rulings seem inconsistent, and issues of first impression frequently have created new lines of precedent that speak …

Rationing Justice?: The Effect Of Caseload Pressures On The U.S. Courts Of Appeals In Immigration Cases, Anna O. Law

Anna O. Law

Beginning in late 2003, the U.S. Courts of Appeals for the Second and Ninth Circuits experienced a deluge of immigration cases caused by changes in another part of the immigration bureaucracy. How did these two circuits, especially the Ninth circuit and its personnel, which handle more than 50% of all immigration appeals nationwide, respond to the "immigration surge" as it came to be called? Using interview data from 25% of the active judges on the court and some central staff, the article examines the series of internal experiments in case management that the Ninth Circuit was forced to undertake in …

The Place Of Repentance In Retributive Sentencing, Itay E. Lipschits, Rinat Kitai-Sangero

itay E. Lipschits

ABSTRACT Repentance touches many aspects of life. It is basic to human relations. The article sets forth the normative reasons for taking repentance into account in the frame of criminal sentencing. Change that takes place in people should be recognized as a relevant measure for society's attitude toward them. The web of social relations among offender, victim, and society needs to permeate the criminal justice system and the considerations of punishment that it includes. Whoever wants to disconnect between the prevailing social reality, which attributes great interpersonal importance to repentance and forgiveness, and the question of how a person is …

Can Psychology Serve As A “Security Factor”? - Incest Survivors As A Test Case Of The Connection Between Psychology And The Criminal-Tort Reality, Limor Ezioni

Limor Ezioni

Today there is a general consensus that victims of crime benefit from psychotherapy, particularly when they have experienced emotional trauma. While legal systems in previous eras did not recognize the emotional difficulties borne by the victims, today they do so almost routinely. It has widely been assumed this understanding of what the victims of serious crimes experience would translate into important legal benefits as well.

We test this assumption through an analysis of the test case of female victims of childhood incest. Contemporary psychology casts these women in a radically new light, one which has brought about legal recognition of …

Non- Profit Charitable Tax Exempt Hospitals- Wolves In Sheep's Clothing:To Increase Fairness And Enhance Compition All Hospitals Should Be For Profit And Taxable, George A. Nation Iii

George A Nation III

Most hospitals in the United States are not-for-profit tax exempt institutions. Legally these hospitals are deemed to be charities and are exempt from federal, state and local taxes, raise money through tax exempt bond offerings and receive charitable contributions that are tax deductible to the donors. Today it is estimated that 47 million Americans lack access to healthcare.5A Moreover, even when the new Patient Protection and Affordable Care Act5B is fully operational, which is estimated to be around 2019, there will still be millions of Americans without health insurance and thus without reliable access to healthcare.5C Notwithstanding the millions of …

War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Collin P Wedel

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue. The war in Afghanistan, presenting a host of thorny legal issues, is now the longest …

The Judicial Instinct To Harmonize Statutes, Steve R. Johnson

Scholarly Publications

Judges like to reach results that harmonize statutory meanings, both meanings within given statutes and meanings among statutes. That inclination applies as fully in tax cases as in nontax cases, and in state and local tax cases as well as in federal tax cases. Effective advocates in state-local tax controversies recognize that judicial tropism and use it, whenever possible, in their clients’ interests.

Part I discusses the harmonization instinct generally. Part II illustrates application of the harmonization approach in state and local cases. Part III notes some limitations on and unsettled questions regarding the harmonization.

Vol. 39, No. 01 (August 30, 2010)

Indiana Law Annotated

No abstract provided.

Is It Greek Or Déjà Vu All Over Again?: Neoliberalism, And Winners And Losers Of International Debt Crises, Tayyab Mahmud

Tayyab Mahmud

The global financial meltdown and the Great Recession of 2007-09 have brought into sharp relief the uneven distribution of gain and pain in economic crises. The 2009-10 debt crisis of Greece has resulted in a windfall for financial institutions at the expense of tax-payers, a rollback of welfare systems, and impoverishment of the working classes. This result is in tune with a pattern evidenced by the ubiquitous international debt crises of the last three decades, including the Latin American crisis of the 1980s, and the Asian crisis of 1990s. The recurrent international debt crises of the last three decades and …