Showing papers on "Principal (commercial law) published in 2011"

Legitimacy of control

Abstract: What is the motivational effect of imposing a minimum effort requirement? Agents may no longer exert voluntary effort but merely meet the requirement. Here, we examine how such hidden costs of control change when control is considered legitimate. We study a principal-agent model where control signals the expectations of the principal and the agent meets these expectations because he is guilt-averse. We conjecture that control is more likely to be considered legitimate (i) if it is not exclusively aimed at a specific agent or (ii) if it protects the endowment of the principal. Given the conjecture, the model predicts that hidden costs are lower when one of the two conditions is met. We experimentally test these predictions and find them confirmed.

Repeated moral hazard and contracts with memory: The case of risk-neutrality

Abstract: We consider a repeated moral hazard problem, where both the principal and the wealth-constrained agent are risk-neutral. In each of two periods, the agent can exert unobservable effort, leading to success or failure. Incentives provided in the second period act as carrot and stick for the first period, so that the effort level induced in the second period is higher after a first-period success than after a failure. If renegotiation cannot be prevented, the principal may prefer a project with lower returns; i.e., a project may be "too good" to be financed or, similarly, an agent can be "overqualified."

European Versus American Liberty: A Comparative Privacy Analysis of Anti-Terrorism Data-Mining

Abstract: The difference between European and American regulation of marketplace privacy is well-established: information privacy is protected more under European law than American law. Recently, with the revelation of a number of U.S. government, anti-terrorism programs, it has become clear that the transatlantic difference is not limited to the market. Also in the face of government action, Europeans protect information privacy more than Americans. This paper brings to light the legal differences between the two systems by considering the case - real in the United States, hypothetical in Europe - of a spy agency's database of call records, created for the purpose of identifying potential terrorists. The paper explains that, under American law, such an anti-terrorism database might very well be legal, and that, under European law, such an anti-terrorism database would clearly be illegal. It then reviews the barriers to transatlantic cooperation on fighting terrorism that have been created by the legal difference. The paper also considers the reasons for this transatlantic difference - surprising in view of the common wisdom that Americans are more suspicious of government interferences with individual liberty than Europeans. The paper concludes with a few recommendations for the reform of American information privacy law, principal among them being the establishment of an independent privacy agency.

The Nunn-McCurdy Act: Background, Analysis, and Issues for Congress

Abstract: For almost 30 years, the Nunn-McCurdy Act has served as one of the principal mechanisms for notifying Congress of cost overruns in Major Defense Acquisition Programs (MDAPs). This report discusses the Act's background, amendments, and relevancy to current times.

Akuntabilitas dalam perspektif teori agensi

Abstract: Accountability is an inseparable part of agency theoryabout the relationship between agent (management) and principal (owner). The essence of theory, difficult creation of relationship between owners and management because conflict of interest. The Solution to improve the performance-based compensation is to give a reward to agent in order to optimizing their work. To maintain accountability , agent is obliged to act in the interests of the principal and the principal gives the power to recognizes agents performance or give a punishment to them .

The Dutch Collective Settlements Act and Private International Law: Aspecten van Internationaal Privaatrecht in de WCAM

Abstract: This report analyses the relationship between private international law and collective settlements concluded for the benefit of foreign interested parties under the 2005 Dutch Collective Settlements Act (WCAM). The principal object of the research was to assess the suitability of existing private international law instruments at the national, European and international levels for the application of WCAM in transnational mass damage cases.

The role of anti-doping education in delivering WADA's mission

Abstract: This article will outline the World Anti-Doping Agency's (WADA) vision and principal activities, including an exploration of its priority activities. These activities focus on several areas emanati...

International Water R esources Law and the International Law Commission Draft Articles on Transboundary Aquifers: A Missed Opportunity for Cross-Fertilisation?

Abstract: While the Draft Articles on the Law of Transboundary Aquifers adopted in 2008 by the International Law Commission (ILC)1 follow the same format as the 1997 UN Watercourses Convention2 and might reasonably have been expected to adopt a similar normative approach wherever possible, the Preamble to the Draft Articles fails to make any reference to this or to other seminal instruments or codifications in the area of international water resources law and the document takes, in some respects, a radically different and less progressive stance. The principal difference in the Draft Articles, and one which can be linked to most of the other deviations, is the inclusion of an express reference to the sovereignty of aquifer States in a manner implying that this is the key guiding principle of the instrument. This emphasis on State sovereignty over shared, and often migratory, water resources appears to represent something of a retreat from the distributive equity inherent in the firmly established principle of equitable and reasonable utilization and from the intense procedural and institutional cooperation required to achieve the community of interests approach necessary to give meaning to this principle. Reliance on sovereignty implies instead a drift towards a position based more on the narrow and immediate self-interest of States. In order to avoid such an interpretation, it would have been better if the Draft Articles had sought to establish two separate but parallel regimes, one based on sovereignty and covering the static geological formation of the aquifer, and one covering the shared water resources contained in, and transiting through, the formation and based on equitable and reasonable utilization.

Fencing Fiduciary Duties

Abstract: This comment on the work of Professor Tamar Frankel builds on her encyclopedic discussion of the various types of duties that have been classified as "fiduciary." I argue for a more precise definition and more limited application of fiduciary duties which recognizes that their usefulness depends on their being limited and separated from other duties that apply in other settings. The fiduciary duty is appropriately construed as one of unselfishness, as distinguished from lesser duties of care, good faith and fair dealing, and to refrain from misappropriation. The fiduciary duty of unselfishness is appropriate only for a limited class of agency relationships in which the principal delegates open-ended power to the agent, and not for those who may exercise lesser power over the property of others, including co-investors, advisors, professionals, and those in confidential relationships. More broadly applying fiduciary duties could unnecessarily constrain parties from self-protection in contractual relationships, impose excessive litigation costs, provide an unsuitable basis for contracting, and impede developing fiduciary norms of behavior. This analysis of fiduciary duties helps address current issues, including those regarding the duties of brokers, dealers, and investment and mutual fund advisors. In short, fencing fiduciary duties protects both fiduciary and non-fiduciary relationships and enables parties to contract for the precise level of protection that is appropriate to the services they are purchasing.

Human Rights and Humanitarian Law as Competing Legal Paradigm for Fighting Terror

Abstract: In a recent article on the interplay between international law and politics, Marti Koskenniemi wrote that "much about the search for political direction today takes the form of jurisdictional conflict, struggle between competing expert vocabularies, each equipped with a specific bias" and that "[p]olitical intervention is today often a politics of re-definition, that is to say, the strategic definition of a situation or a problem by reference to a technical idiom so as to open the door for applying the expertise related to that idiom, together with the attendant structural bias." The "war on terror" in the first decade of the Twenty First Century exemplifies such political struggles over the governing legal paradigm. Not only is the meaning of the term "terrorist" itself controversial; the legal framework governing the fight against terrorism is also highly contested, and features an intense struggle between a human rights centered "law enforcement" paradigm and a more aggressive humanitarian law based "armed conflict" paradigm. Describing the paradigm struggle in Koskenniemic terms not only reveals, once again, the potential for the strategic use of the law; it also exposes the meta-differences between human rights law and humanitarian law. The considerable political capital and legal efforts invested in jockeying between the two competing paradigms casts doubt on the increasingly common narrative of the growing merger between human rights law and humanitarian law and the irrelevance of distinguishing between the two. Moreover, it is now clearer than before that the ideological tensions between the two camps supporting the competing paradigms cannot be avoided even if a mixed paradigm were to be developed to govern the fight against terror (as is increasingly alleged). Such a development may simply lead to the channeling of the same ideological struggles that had been held over the choice of paradigm to disagreement on the contents and direction of the new mixed paradigm. In Part One of this Chapter, I describe the jurisdictional struggle between the two principal legal paradigms that purport to regulate the international fight against terror: The law enforcement and the armed conflict paradigms. Arguably, many disagreements concerning the lawfulness of specific counter-terrorism, such as targeted killings or detention without trial, are actually disagreements on the applicable legal framework and the stories on the nature of the threat of terrorism that is being offered. In Part Two, I consider the emergence of a mixed paradigm which borrows contents from both human rights law and humanitarian law. I argue that such normative cross-over illustrates the difficulty of maintaining rigid paradigmatic distinctions in light of the complexities of the fight against terror; but also that some key differences in emphasis between the two paradigms nonetheless remain. Most significantly, I argue that the development of a new mixed paradigm merely re-contextualizes preexisting jurisdictional struggles over the proper legal framework to govern the fight against terror. Part Three concludes.

Responsibility for Collective Atrocities: Fair Labelling and Approaches to Commission in International Criminal Law

Abstract: A major theoretical challenge for international criminal law is how to account for and adequately label the responsibility of the highest ranking leaders, often far removed from actual killings carried out through an organization or movement. This challenge is also coupled with a problem of labelling. We commonly distinguish between the person who directly committed a crime (the perpetrator/principal) and a person who assisted in the commission of the crime less directly (an accessory). On this approach leaders may seem ‘mere’ accessories. Nonetheless, given the perceived truth-telling function of international criminal trials, judges seemingly feel compelled to label leaders as direct perpetrators who have committed the crime itself and not as accessories who have ordered or incited or failed to prevent it. This requires an expanded concept of commission, a project that immediately raises questions of theory, black letter scholarship and fairness. Once we uncouple commission from the direct physical perpetrator, where do the boundaries of commission fall? A too diffuse theory of commission may inappropriately stigmatize ‘small fish’, labelling them as being equally as culpable as high-ranking leaders. This article critically reviews the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) on commission in collective responsibility cases. The conclusion reached is that the preferable view is that leaders are accessories who can nonetheless be more culpable than principals, because they are aggregators of responsibility. What we need are not new tools, but different ways of understanding existing concepts.

Apportioning Responsbility Among Joint Tortfeasors for International Law Violations

Abstract: With the new wave of claims against corporations for human rights violations – particularly in the context of aiding and abetting government abuse – there are unusually difficult problems of joint tortfeasor liability. In many circumstances, one tortfeasor – the corporation – is a deep-pocketed defendant, easily subject to suit, but only marginally involved in the unlawful conduct. Another tortfeasor – the sovereign – is a central player in the unlawful conduct, but, with limited exceptions, is immune from suit under the Foreign Sovereign Immunities Act. A third tortfeasor – the low-level security personnel – accused of actually committing the atrocity, is beyond the jurisdictional reach of the forum and is an insolvent, judgment-proof defendant.How should an adjudicator apportion responsibility among these joint tortfeasors? Does it matter that the principal players are immune or insolvent, while the marginal player is not? In apportioning responsibility, is it relevant that one tortfeasor simply knew of the misconduct or was negligent with respect to its likely occurrence, although it did not intend for the violation to occur? Despite the saliency of these questions, international law does not provide the answers.These problems are only exacerbated by the fact that international law violations can be pursued in multiple arenas – in national courts, international tribunals, and international arbitral bodies. As a general rule, international tribunals will resolve the question of apportioning liability using public international law, while domestic courts will resolve the question by recourse to private international law, and arbitral panels will rely on the governing law of the contract. The approach for resolving questions of apportionment will differ in these contexts, although each will resort to domestic tort law in one way or another.

Employment discrimination and Muslims in the USA

Abstract: Fears of terrorism and radical extremists have engendered increased discrimination and harassment in the US workplace against Muslim employees. The principal purpose of this paper is to examine civil rights law in the USA as applied to the religious discrimination and harassment of Muslim and Arab-American employees. The paper provides an overview of the US discrimination laws and discusses the nature and role of the Equal Employment Opportunity Commission in implementing and enforcing discrimination law. Detailed recommendations are supplied to managers on how to deal with civil rights laws generally and the prohibitions against religious harassment and discrimination specifically. Recommendations are also provided on how to deal with and to defend discrimination lawsuits.

Shareholder Suits and Outside Director Liability: The Case of Korea

Abstract: Reforms to Korean corporate and securities law carried out in the wake of the 1997-1998 East Asian financial crisis included a mandate that boards include a minimum number of outside directors and facilitation of shareholder lawsuits against board members for damages. The strategy of imposing liability risk on directors (both inside and outside) appeared to follow U.S. practice. In the U.S., outside directors of public companies are often sued but rarely face personal, or “out-of-pocket,” liability unless they engage in self-dealing. Instead, damages and legal fees are paid by the company, directors' and officers' (D&O) insurance, or both. Outside directors of public companies in Australia, Canada, Britain, France, Germany, and Japan similarly rarely face out-of-pocket liability due to shareholder lawsuits. Moreover, when events have occurred in these countries that increase the risk of out-of-pocket liability, there is a strong tendency for political or market forces to reestablish a non-zero but minimal level of risk for actions that do not involve self-dealing. Korea’s experience seems to be similar. We argue that Korea could go somewhat further to encourage litigation against outside directors of public companies, but should not open the way for “out of pocket” liability to become commonplace. For a shorter, somewhat updated version of this article, see Black, Cheffins & Klausner, Shareholder Suits Against Korean Directors (2012), at http://papers.ssrn.com/abstract=913623. For the other principal pieces of our overall project on outside director liability, see: Black, Cheffins & Klausner, Outside Director Liability (Stanford Law Review, 2006), http://papers.ssrn.com/abstract=894921 Cheffins and Black, Outside Director Liability Across Countries, (Texas Law Review 2006), http://papers.ssrn.com/abstract=438321. Additional pieces of this overall project are: http://papers.ssrn.com/abstract=878135 (policy analysis) http://papers.ssrn.com/abstract=382422 (a pre-Enron and WorldCom version of Outside Director Liability) http://papers.ssrn.com/abstract=628223 (study of Korea) http://papers.ssrn.com/abstract=682507 (summary article for a finance audience) http://papers.ssrn.com/abstract=800584 (Germany-centered) http://papers.ssrn.com/abstract=800604 (German language version of Germany-paper) http://papers.ssrn.com/abstract=590913 (summary for practitioner audience)

Free Access to Legal Information, LIIs, and the Free Access to Law Movement

Abstract: This book chapter describes and analyses the global development of free access to legal information since the mid-1990s, and particularly the group of ‘Legal Information Institutes’ (LIIs) that make up the Free Access to Law Movement.From the mid-1990s the world-wide-web provided the necessary technical platform to enable free public access to computerized legal information – a low cost distribution mechanism. In many countries the first attempts to exploit the advantages of the web for providing legal information came from the academic sector rather than government, and did so with an explicit ideology of free access provision. The first group of such organizations became known collectively as ‘legal information institutes’ or ‘LIIs’. Two distinguishing characteristic of the ‘LIIs’ are that (i) they publish legal information from more than one source (not just ‘their own’ information), for free access via the Internet, and (ii) they collaborate with each other through membership of the ‘Free Access to Law Movement’.Most but not all share three other characteristics. They collaborate through data sharing networks or portals, and also technical networks for back-up security purposes. Most are independent of government, though this is diminishing as a distinguishing feature. The majority use one of two open source search engines: the Sino search engine developed by AustLII and the Lucene search engine utilized by LexUM in the development of various LIIs.Three LIIs played key roles in early developments: the Legal Information Institute (Cornell), AustLII, and LexUM. They each developed from research projects on various aspects of legal automation going back to the 1980s, and were ready to capitalist on the world-wide-web’s sudden emergence into public prominence around 1994. Their roles are explained.From 2000 AustLII started to use its search engine and other software to assist organizations in other countries, initially limited to those with academic roots, to establish LIIs with similar functionality. AustLII helped to establish between 2000-04 servers and databases for six LIIs (BAILII, PacLII, HKLII, SAFLII, CyLaw and NZLII). It operated the servers for a period on behalf of its local partners, with progressive local take-over of operations. Responsibility for obtaining and developing legal data was usually undertaken by the local partner from the outset. Each of these LIIs is described. Having established CanLII, LexUM used the tools it had developed to create, with local partners, Droit Francophone (2003), JuriBurkina (2003) and JuriNiger (2007).The Free Access to Law Movement (FALM), established in 2002, is a loose affiliation of 33 legal information institutes as of March 2010. The ‘Law via Internet’ Conferences have since 1997 been the principal means by which this cooperation was established. The Declaration on Free Access to Law (2002) sets out FALM’s aims as ‘the primary role of local initiatives in free access publishing of their own national legal information’ and secondly that ‘All legal information institutes are encouraged to participate in regional or global free access to law networks’.The development of multi-LII portals since 2002 is described, particularly WorldLII, CommonLII and AsianLII, plus the LawCite citator, operated by AustLII in cooperation with twelve other LIIs. The Global Legal Information Network (GLIN), operated by the US Library of Congress, and by LexUM’s development of Droit Francophone, are also described. The number of databases provided by all of the LIIs of the Free Access to Law Movement has been growing rapidly ever since 2002, and amounted to 1190 databases in 2009.Different models for networking free access LIIs are discussed. The LII networks provided through WorldLII, CommonLII and AsianLII primarily utilise a replication/synchronization model, and differences within FALM on this strategy, compared with ‘federated searching’, are outlined. Various other policy differences within FALM are also discussed.The extent to which FALM is global is analyzed, including the role that ‘government LIIs’ can play in FALM. It is clear that there is far more free access to law than is provided by the current members of the Free Access to Law Movement. The geographical scope of FALM membership is nevertheless as yet far more limited than the spread of free access to law as an idea and a reality, being concentrated on the Anglophone and Commonwealth countries, some parts of the francophone, and parts of Asia. This is a challenge for a movement which is potentially global, but also indicates that the Free Access to Law Movement and the development of LIIs may yet be far from reaching its maximum impact. The extent of free access outside FALM is outlined.Reasons why impediments to full free access to law are decreasing are outlined, particularly in relation to copyright law and access to data. The extent to which FALM members have established standards for citations are discussed.The most concerted discussion of some of the principles in the Declaration on Free Access to Law, and further development of them, took place at an expert meeting called by the Hague Conference on Private Law in 2008, resulting in 18 draft Principles on desirable conduct of States in relation to free access to legal information. The relationship between LIIs and Internet search engines like Google, and why most LIIs block search engines from indexing their case law, are also discussed.

The Deepwater Horizon Oil Spill and the Limits of Civil Liability

Abstract: This Article uses the unprecedented disaster in the Gulf of Mexico as an opportunity to critically evaluate the law pertaining to civil liability for oil pollution before and after the enactment of the Oil Pollution Act. This topic is analyzed as a derivative of a more general concern, namely the internal harmony of civil liability regimes. The Article unveils a general incongruity in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation, and examines whether subsequent statutory reform has eliminated the problem in the limited context of marine oil pollution, using the Deepwater Horizon incident as a test case. Part I systematically discusses pre-OPA law. It focuses mainly on two salient features of the Exxon Valdez litigation, namely exclusion of liability for purely economic losses, and punitive damages. Part II explains why pre-OPA maritime law gave rise to incongruity on the justificatory level, delineates the contours of the problem, and proposes a conceptual framework for resolution. Part III examines whether the enactment of the OPA has created a more defensible liability regime. Following the Deepwater Horizon oil spill, there have been calls for raising the OPA liability caps or an even more comprehensive legislative reform. While some of the initiatives seem to have waned, this catastrophic incident, like the earlier Exxon Valdez case, will surely leave its mark. This article, which highlights relevant policy concerns, will undoubtedly serve policymakers in reassessing the limits of civil liability for marine oil pollution. INTRODUCTION 2 I. LIABILITY IN THE PRE-OPA ERA 9 A. General Maritime Law 10 1. Purely Economic Losses 10 a. The Exclusionary Rule 10 b. The Commercial Fishermen's Exception ........ 21 c. The Exxon Valdez Litigation 22 2. Punitive Damages 24 a. The Punitive Damages Doctrine 24 b. TheExxon Valdez Litigation 31 B. Federal Legislation 33 C. State Law 35 II. THE GENERAL PROBLEM: SIMULTANEOUS APPLICATION OF THE EXCLUSIONARY RULE AND THE PUNITIVE DAMAGES DOCTRINE 37 A. The Adverse Consequences of Simultaneous Application ..... 38 B. The Scope of the Problem 43 C. Guidelines for Resolution 46 III. OIL POLLUTION LIABILITY IN THE OPA ERA 48 A. The Current Liability Scheme 49 1. The Oil Pollution Act 49 2. State Law 59 B. A Critical Appraisal of the Current Scheme 62 CONCLUSION 66 INTRODUCTION On April 20, 2010, while drilling at the Macondo Prospect, a seabed location about forty-one miles off the southeast coast of Louisiana, an explosion occurred on the Deepwater Horizon, a mobile offshore drilling rig.1 The rig was owned and operated by Transocean, the world's largest offshore drilling contractor, and leased to BP, one of the world's largest energy companies and the lessee and principal operator of the Macondo field. …

A theory of agency law

Abstract: Despite the ubiquity of agents in the modern world, agency law does not have a coherent explanation or unified theory. The Restatement (Third) of Agency updates and attempts to explain the law, but its explanations are limited in scope and at times unpersuasive. Like other contemporary commentary on agency law, the Third Restatement draws from contract and tort theory, an approach which ignores the unique features of agency law. Agency law enables principals to act through agents; it also ensures that principals using agents do not thereby escape liability or other consequences of their choices. This paper develops a theory to fit agency law. The "costbenefit internalization theory" is based on the simple premise that the principal, who has chosen to conduct her business through an agent, must bear the foreseeable consequences of that choice. Conversely, as the bearer of the risks, the principal is entitled to receive the benefits created by the agency relationship. The cost-benefit internalization theory explains and illuminates virtually all agency law doctrine.

Leniency and individual liability, Oopening the 'black box' of the cartel

Abstract: The purpose of this article is to examine the interplay between two competition policy enforcement instruments - leniency policy and individual liability, by opening the ‘black box’ of the cartel, with the analysis of interactions both among the cartel members and within each company. The interplay of these instruments translates into a two-dimensional system: the horizontal dimension is formed by the cartel members; the vertical one by the interactions within each cartel member. We base our analysis on the theory of the firm, advocating the separation of ownership and control, and on the theory of agency that states the principles of inherent moral hazard problems between the principal (owner) and the agent (manager). The reasoning is carried out along economic and legal literature on collusive agreements, leniency programmes and individual liability. The economic literature also gives key insights on corporate governance issues that are relevant in cartels, through game theoretical approaches. Theoretical insights will help us to understand why cartel activity is a matter of agency and governance issues. The subsequent section will be dedicated to the examination of individual liability and corporate leniency policy, in the light of agency issues. Individual leniency policy will be assessed in the last section. Individual leniency programmes are in practice never used by individuals of companies of a cartel. Nonetheless, such programmes are efficient in the way they undermine both the relations between cartel members and those inside the companies. We show how opening the ‘black box’ of the cartel is of primary importance when assessing the efficiency of leniency and individual liability. Agency issues shape the interactions between actors operating in both dimensions of the system under consideration, which are the principals and the agents of the firms of the cartel.

International Environmental Agreements: Incentive Contracts with Multilateral Externalities

Abstract: We consider how one party can induce another party to join an international emission compact given private information. Due to multilateral externalities the principal uses her own emissions besides subsidies to incentivize the agent. This leads to a number of non-standard features: Optimal contracts can include a boundary part, which is not a copy of the no contract outcome. Compared to this, a contract can increase emissions of the principal for inefficient types. Subsidies can be constant or even decreasing and turn negative, i.e., the agent reduces emissions and pays the principal.

The law firm as an investment bank in class actions

Abstract: Class action finance raises substantial principal agency problems between plaintiffs and lawyers, which limit the extent to which the class action can be used as an instrument to overcome market failure.

Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position

Abstract: INTRODUCTION I. THE MODERN POSITION" EXPLICATION AND PRELIMINARY DEFENSE A. The Basic Case for the Modern Position 1. Constitutional Structure and Original Intent 2. Pre-Erie Doctrine a. State Authority to Depart from Customary International Law b. Supreme Court Review of Customary International Law c. The General Law as an Intermediate Status 3. Post-Erie Doctrine B. The Limits of the Modern Position 1. Sabbatino and the Inapplicability of Some Customary International Law Norms to Some Acts of Foreign States 2. The Paquete Habana and the Applicability of Customary International Law to Federal Officials C. Sosa and the Modern Position II. THE INTERMEDIATE THEORIES A. Ramsey's Position 1. Nonpreemptive Federal Law as State Law 2. Ramsey's Textual and Historical Support B. Young's Position 1. Young's Criticisms of the Modern Position 2. Young's Intermediate Status for Customary International Law a. State Choice-of-Law Rules i. The Diversity and Indeterminacy of Existing Choice-of-Law Approaches ii. The Inappositeness of Choice-of-Law Rules iii. The Likelihood of Special Choice-of-Law Rules iv. The Role of the Federal Courts v. Summary b. Federal Choice-of-Law Rules C. Aleinikoff's Position D. The Bellia-Clark Position E. The Bradley-Goldsmith-Moore Position III. THE MODERN POSITION, REDUX A. The New Ways of Making Customary International Law B. The New Topics Addressed by Customary International Law IV. STATE INCORPORATION OF CUSTOMARY INTERNATIONAL LAW CONCLUSION INTRODUCTION In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. (1) The amendment's exclusion of Sharia law has garnered most of the media attention, (2) but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, (3) but others barring consideration of international law as well. (4) These measures are clearly unconstitutional insofar as they would prohibit the State courts from enforcing one of the two main forms of international law--treaties--as the U.S. Constitution by its terms requires State courts to give effect to the nation's treaties, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (5) But the federal Constitution does not expressly address the status of the other principal form of international law--customary international law, or the unwritten law that governs the relations among states and "results from a general and consistent practice of states followed by them from a sense of legal obligation." (6) These proposed State laws thus starkly raise the question whether the States may prohibit their courts from giving effect to the United States' obligations under customary international law. (7) The answer provided by the Restatement (Third) of Foreign Relations Law is a clear "no." Reflecting the settled view regarding the status of customary international law in the U.S. legal system at the time that it was approved in 1987, the Restatement asserts that such law has the status of federal law. (8) As such, it preempts inconsistent State law; State courts must follow federal court interpretations of it; and State court interpretations of it are reviewable in the federal courts. …

Who's in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?

Abstract: After describing three principal views on whether the President has directive authority, this Article discusses the constitutional foundations of this debate. It then reviews the history of presidential oversight of agencies and its implications for the debate over directive authority. The Article concludes by explaining why, even if the President has unfettered removal authority over the heads of non-independent agencies, it matters that this removal power does not imply the power to control decision making entrusted by law to agency heads.

HIV, Trust and the Criminal Law

Abstract: This article explores the legitimacy of criminalising nondisclosure of HIV-positive status to sexual partners. Its principal aim is to propose a new offence that criminalises such non-disclosure when it constitutes a breach of trust. In defending the proposed offence, the article argues that the criminal law has a legitimate function in penalising breach of trust when the breach causes both personal and social harm. The article also explores whether the existing offences of s. 20 of the Offences Against the Person Act 1861 and rape (s. 1 of the Sexual Offences Act 2003) are suited to criminalising non-disclosure, and concludes that they are not. The article additionally considers the arguments against the criminalisation of non-disclosure advanced by various commentators and argues that its proposed offence avoids the concerns expressed. The article concludes that the proposed offence is both a morally justified and practically realistic way of criminalising non-disclosure of HIV-positive status.

Out of the Principal's Office and Into the Courtroom: How Should California Approach Criminal Remedies for School Bullying

Abstract: INTRODUCTION School bullying is a hot-button issue. A recent spate of highprofile teen \"bullycides\" '-suicides by students who are apparently driven to kill themselves in response to relentless bullying by their peers-has spawned a nationwide outpouring of outrage and 2 sympathy, accompanied by vocal demands for schools and law enforcement to \"get tough\" on bullies.3 Books and articles about the dangers of bullying have proliferated in the popular press, decrying

Law in the Egyptian Revolt

Abstract: [Among the protest movements sweeping the region in the Arab awakening of 2011, the Egyptian revolt is the movement that is perhaps most defined by a struggle over the Constitution and the rule of law more generally. I argue that this intense focus on law and legal institutions is a legacy of the prominent role that law played in maintaining authoritarian rule in Mubarak's Egypt. Just as law and legal institutions were the principal mechanisms undergirding authoritarian rule, opposition activists know that democracy can only emerge through comprehensive legal reform. This article examines the struggle for constitutional power in three periods – before, during, and after the Egyptian revolt of 2011., Among the protest movements sweeping the region in the Arab awakening of 2011, the Egyptian revolt is the movement that is perhaps most defi ned by a struggle over the Constitution and the rule of law more generally. I argue that this intense focus on law and legal institutions is a legacy of the prominent role that law played in maintaining authoritarian rule in Mubarak’s Egypt. Just as law and legal institutions were the principal mechanisms undergirding authoritarian rule, opposition activists know that democracy can only emerge through comprehensive legal reform. Th is article examines the struggle for constitutional power in three periods – before, during, and after the Egyptian revolt of 2011.]

Patent Litigation in China

Abstract: Contents 1. Introduction 1.1 Intellectual Property Rights in China 1.2 Scope of this book 1.3 History of Patent Law in China 1.4 Modern Patent Law 1.5 Patents in China 1.6 Weakness in the Chinese Patent System 2. Sources of Patent Law 2.1 Principal Legal provisions covering patent law 2.2 Other Relevant Legislation 2.3 Amendments to the Law 2.4 Re-numbering of Articles after amendment 2.5 Transitional provisions applying to most recent amendments 2.6 Case Law 2.7 Supreme Court Judicial Interpretations and Opinions 2.8 Interpretations and Opinions of lower courts 3. Introduction to China's Administrative and Judicial System 3.1 Introduction 3.2 Administrative System 3.3 Judicial System 3.4 State Intellectual Property Office 3.5 Patent Review and Adjudication Board 3.6 Structure of the Chinese Judicial system 3.7 Intellectual Property Chambers 3.8 Courts that handle patent cases 3.9 Appeals 3.10 The Judiciary 3.11. Adjudication Committees 4. Administrative Enforcement 4.1

Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate

Abstract: In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate. The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must exercise a subsidiary rather than an independent power, must be important or customary to achievement of a principal end, and must conform to standard fiduciary obligations. From administrative law, the Necessary and Proper Clause embodies the closely-related principle of reasonableness in the exercise of delegated power, which independently requires conformance with a similar set of fiduciary norms, including the norms of acting only within delegated jurisdiction and of treating all persons subject to a public agent‘s power impartially. Evidence from eighteenth-century corporate law – and the Constitution was widely recognized in the founding era as a type of corporate charter – confirms these conclusions about the meaning of the phrase "necessary and proper for carrying into Execution . . . ." The power to order someone to purchase a product is not a power subordinate or inferior to other powers, such as the power to regulate voluntary commerce. The power to compel commerce is at least as significant – or, in eighteenth-century language, as "worthy" or of the same "dignity" – as the power to regulate insurance pricing and rating practices. It is therefore not incidental to other powers exercised by Congress in the PPACA and must be separately enumerated if it is to exist. Second, the doctrine of principals and incidents and the principle of reasonableness both embody the fiduciary norm that agents exercising delegated power must treat multiple principals subject to those agents' power impartially. Interpreting the Necessary and Proper Clause to allow Congress to force private dealings with preferred sellers of products fails that basic fiduciary norm, as illustrated by founding-era concerns about Congress invalidly using the Necessary and Proper Clause power to create monopolies.

Economic Approaches to Global Regulation: Expanding the International Law and Economics Paradigm

Abstract: The recent economic crisis has demonstrated with startling clarity the importance of developing a more robust framework for assessing the effects of national rules on global welfare. For more than fifty years, law and economics scholars have examined the effects of domestic legal rules on economic activity and general welfare in the United States. More recently, international law scholars have begun to use economic methods to analyze the international legal order. In this article I survey this evolving body of “international law and economics scholarship” with a view to articulating its principal methodological innovations as well as assessing its contributions to our substantive understanding of the global order. I conclude that while the accomplishments of international law and economics scholars have been substantial, their focus on sovereignty and their commitment to a particular set of analytic assumptions borrowed from “new institutional economics” limits their ability to capture the “real world” complexity and diversity of the global legal order. I suggest that we must expand our analytic methods to take up more directly the inherently political and normative character of our analytic assumptions. Doing so might lead us to more normative and less theoretically certain accounts of the global order in which we live, while pointing us toward the more just, equitable and prosperous order we might create.

The constitutional credentials of state constitutions

Abstract: While there are still significant variations in the concept of a ‘constitution’ across the world, its principal features are broadly familiar and widely shared. In most places, a constitution is understood as a single, formal, written document that provides a framework for the institutional structure of government, delineates key aspects of relations between people and the state, and protects other matters deemed sufficiently important in the polity in question to warrant constitutional status. Typically, a constitution is accepted as a form of law that overrides other law and in that sense is supreme. Supremacy generally is secured both by a constitutional alteration procedure, which differs from alteration procedures in existence for ordinary law, and is further secured through a provision for a form of judicial review, should conflicts with ordinary law arise. Almost invariably, a constitution is made by a distinctive process that assists to justify its superior status by reflecting, more or less overtly, the authority on which it is accepted to rest. In a democracy the obvious constituent authority is the people. The people in turn are imagined for this purpose as a collective identity to which ultimate sovereignty can be ascribed, existing in a symbiotic relationship