AuthorTitleCitationSummaryYearKey Terms
Christopher C. Wheeler , Amir Attaran Declawing the Vulture Funds: Rehabilitation of a Comity Defense in Sovereign Debt Litigation 39 Stanford Journal of International Law 253 (Summer 2003) The collective action problem posed by holdout creditors who defect from debt restructurings is an inherent feature of finance. The market for sovereign debt presents no exception--holdout creditors have always threatened to jeopardize effective sovereign restructurings. Their refusal to go along with the plan tends to deter participation in the... 2003  
Antonio F. Perez Delegalization of Arms Control--a Democracy Deficit in De Facto Treaties of Peace? 4 Chicago Journal of International Law 19 (Spring 2003) Delegalization of arms control is now an accomplished fact. In this period of potential dramatic revision of the international order, it is not surprising that the US is seeking increased flexibility in pursuing several strategies, including the full use of military and technological advantages. The motivations behind this include US interests, as... 2003  
Scott Dodson Dignity: the New Frontier of State Sovereignty 56 Oklahoma Law Review 777 (Winter 2003) Few constitutional doctrines have had as turbulent a history as state sovereign immunity. Sovereign immunity, the right of a sovereign to refuse to appear as a defendant in court, has been described at various times as an assumed part of civilized nations, a common law doctrine that Congress may abrogate, a constitutional doctrine grounded in the... 2003  
John Alan Doran, Christopher Michael Mason Disproportionate Incongruity: State Sovereign Immunity and the Future of Federal Employment Discrimination Law 2003 Law Review of Michigan State University Detroit College of Law C.L. 1 (Spring 2003) I. Early History. 3 II. Contemporary Jurisprudence. 8 III. The Future of Federal Employment Laws as Applied to the States. 15 A. The Family and Medical Leave Act. 16 1. The Conflict Between the Circuits. 19 2. The Future of the FMLA as Applied to the States. 22 a. Those FMLA Provisions Not Directly Linked to Gender-Based Discrimination Violate the... 2003  
Zhang Naigen Dispute Settlement under the Trips Agreement from the Perspective of Treaty Interpretation 17 Temple International and Comparative Law Journal 199 (Spring 2003) It has been recognized that the Trade-Related Intellectual Property Rights (TRIPS) Agreement takes a unique position in the system of the World Trade Organization (WTO) for two main reasons. First, the TRIPS Agreement, one of the three pillars of the WTO, is a potential first step toward linking many possible trade-related issues, such as the... 2003  
Ronald J. Silverman, Mark W. Deveno Distressed Sovereign Debt: a Creditor's Perspective 11 American Bankruptcy Institute Law Review 179 (Spring, 2003) The 1980's and 1990's bore witness to a series of financial crises that proliferated throughout Latin America, Asia, Russia, and other emerging markets. In fact, [s]ome fear [that] such crises may be about to engulf parts of Latin America again, with Argentina's restructuring efforts, of course, serving as an example. Accordingly, creditors... 2003  
Edward T. Swaine Does Federalism Constrain the Treaty Power? 103 Columbia Law Review 403 (April, 2003) The Supreme Court's revival of federalism casts doubt on the previously unimpeachable power of the national government to bind its states by treaty, suggesting potential subject-matter, anti-commandeering, and sovereign immunity limits that could impair U.S. obligations under vital trade and human rights treaties. Existing scholarship treats these... 2003  
Kathryn J. Gainey Does Sovereign Immunity Bar Administrative Proceedings Pursuant to Federal Environmental Statutes? 27 Harvard Environmental Law Review 227 (2003) Recently, the Supreme Court has expanded state sovereign immunity by reversing several established precedents. For example, in 1996, in Seminole Tribe v. Florida, the Court held that Congress does not have the power to abrogate state sovereign immunity under Article I in federal courts. In 1999, the Court extended the holding from Seminole Tribe to... 2003  
Andrew Armstrong Drug Courts and the De Facto Legalization of Drug Use for Participants in Residential Treatment Facilities 94 Journal of Criminal Law and Criminology 133 (Fall 2003) The recreational possession and use of some drugs is regarded as a criminal offense in every state in the nation. What this means for an offender is that the state views discrete incidents of detected possession not as manifestations of an over-arching addiction, but as isolated crimes deserving punishment. This approach comports with a traditional... 2003  
Lauren K. Lofton Drunk Driving and Deportation--should Dui Convictions Be Treated as Crimes of Violence for Ins Removal Purposes? 81 Washington University Law Quarterly 591 (Summer 2003) Drunk driving poses serious social problems in the United States. In an attempt to combat this problem, several circuit courts have ruled that aliens convicted of multiple drunk driving offenses should be deported while other circuits have disagreed, allowing aliens with drunk driving convictions to remain in the U.S. As a result of this circuit... 2003  
Scott Clair Dual Sovereignty and Preventive Commandeering: Why the Federal Immunity Statute Cannot Preempt State Prosecutions 2003 University of Illinois Law Review 863 (2003) This note analyzes whether the federal immunity statute may forbid states from prosecuting state crimes when the violation of state law was discovered through federally immunized testimony. Early cases dealing with the immunity statute held that federal immunity could not bar subsequent state prosecutions, but during the Warren Court era, the... 2003  
Karen Heymann Earned Sovereignty for Kashmir: the Legal Methodology to Avoiding a Nuclear Holocaust 19 American University International Law Review 153 (2003) INTRODUCTION. 154 I. BACKGROUND. 158 A. HISTORY OF THE KASHMIR CONFLICT. 158 1. The Origin of the Conflict. 158 2. War Breaks Out Between the Parties. 160 3. The Current Insurgency. 163 4. A New Beginning. 166 B. LEGAL STRUCTURES FOR RESOLVING SELF-DETERMINATION CONFLICTS. 168 1. Plebiscites or Referendums. 169 2. Earned Sovereignty: A Possible... 2003  
Michael P. Scharf Earned Sovereignty: Juridical Underpinnings 31 Denver Journal of International Law and Policy 373 (Summer 2003) Sovereignty either is or is not. -- Stephen Leacock It is undeniable that the centuries-old doctrine of absolute and exclusive sovereignty no longer stands, and was in fact never so absolute as it was conceived to be in theory. -- Boutros Boutros-Ghali It has often been said that the defining issue in international law for the 21 century is... 2003  
James E. Bond Eleventh Amendment Sovereignty: Much Ado about Nothing? 2003 Cato Supreme Court Review 223 (2002-2003) The Supreme Court's decision in Nevada v. Hibbs is the latest skirmish in the current Supreme Court's bitter internecine battle over the constitutional scope of a state's sovereign immunity. That battle is but the most recent phase in a two-hundred-year war over the appropriate, respective roles of the state and national governments in America's... 2003  
Arthur E. Wilmarth, Jr. Elusive Foundation: John Marshall, James Wilson, and the Problem of Reconciling Popular Sovereignty and Natural Law Jurisprudence in the New Federal Republic 72 George Washington Law Review 113 (December, 2003) The bicentennial of Marbury v. Madison has encouraged scholars to offer new perspectives on the historical development of judicial review in the United States. Marbury provided the cornerstone for the modern doctrine of judicial review, as it was the first case in which the Supreme Court struck down an act of Congress on constitutional grounds. In... 2003  
Emma Garrison Entergy Arkansas, Inc. v. Nebraska: Does a Radioactive Waste Compact Nuke Sovereign Immunity? 30 Ecology Law Quarterly 449 (2003) In Entergy Arkansas, Inc. v. Nebraska, perhaps the most significant decision regarding the Low-Level Radioactive Waste Policy Act since New York v. United States, the Eighth Circuit held that Nebraska was not entitled to sovereign immunity protections from suit arising from its obligations under the Central Interstate Low-Level Radioactive Waste... 2003  
Beth L. Kruchek Extending Wetlands Protection under the Ramsar Treaty's Wise Use Obligation 20 Arizona Journal of International & Comparative Law 409 (Summer, 2003) The United States has an obligation under the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention) to promote the protection of wetland habitats within its borders. However, compliance with this international treaty is problematic since it remains unclear what specifically constitutes a wetland... 2003  
Adam Feibelman Federal Bankruptcy Law and State Sovereign Immunity 81 Texas Law Review 1381 (May, 2003) I. The Doctrinal Setting. 1386 A. Seminole Tribe. 1386 1. Ex Parte Young. 1389 2. Waiver. 1390 B. Immunity and the Code. 1391 C. Conclusion. 1401 II. The Case For States' Privileged Status In Bankruptcy. 1402 A. The Administrative States. 1404 B. Creditor States. 1408 1. Regulation and Fiscal Policy. 1409 2. States as Constrained Financial Actors..... 2003  
Christopher G. Paulraj Federal Maritime Commission v. South Carolina State Ports Authority: Extending the States' Sovereign Immunity to Administrative Adjudications 55 Administrative Law Review 679 (Summer, 2003) C1-2Table of Contents Introduction. 680 I. State Sovereign Immunity Jurisprudence Prior to Federal Maritime Commission. 682 A. The Eleventh Amendment and Beyond. 682 B. The Exceptions to a State's Sovereign Immunity. 684 C. Seminole Tribe and Congress's Abrogation Powers. 685 II. Background of Federal Maritime Commission. 687 A. The Federal... 2003  
Richard B. Graves III Globalization, Treaty Powers, and the Limits of the Intellectual Property Clause 50 Journal of the Copyright Society of the U.S.A. 199 (2003) Recent years have seen the development of three trends that will soon require a fundamental rethinking of certain aspects of the federal government's treaty powers. The first is the explosive increase in the value of international transactions in the wake of GATT and NAFTA. The second is the U.S. Supreme Court's imposition of limitations upon the... 2003  
Mary De Ming Fan Governing Copyright in Cyberspace: the Penalty Default Problem with State-centric Sovereignty 43 Jurimetrics Journal 315 (Spring, 2003) ABSTRACT: This Article examines the consequences for Internet governance of observing traditional, state-centric sovereignty in multilateral cyberspace regulation by analyzing the World Intellectual Property Organization's Copyright Treaty. Three layers of protection for state sovereignty in the Treaty interact to produce a possible nonenforcement... 2003  
Parker Moore Hoodwinked by Hatter: Creating a Test for Constitutional Waivers of Sovereign Immunity to Pre-judgment Interest Awards 27 Vermont Law Review 1061 (Summer, 2003) Judges must beware of hard constructions and strained inferences, for there is no worse torture than the torture of laws. Francis Bacon Apart from the actual words of the United States Constitution, precious little evidence remains to indicate the Framers' intent during the drafting process. Admittedly, a few scattered relics and yellowing memoirs... 2003  
Tania Tetlow How Batson Spawned Shaw -- Requiring the Government to Treat Citizens as Individuals When it Cannot 49 Loyola Law Review 133 (Spring 2003) Sometimes government is forced to engage in stereotyping of its citizens. As prosecutors pick juries or state legislators draw district lines through a neighborhood, they guess about the beliefs of their citizens without the benefit of much information. These stereotyping decisions are different from government decisions made about individuals on... 2003  
Timothy K. Kuhner Human Rights Treaties in U.s. Law: the Status Quo, its Underlying Bases, and Pathways for Change 13 Duke Journal of Comparative & International Law 419 (Spring 2003) As of this day, the United States has ratified three of the major seven global human rights treaties (HRTs). The three it has ratified have been assented to only conditionally. They have been qualified by reservations, understandings, and declarations (RUDs) to prevent their direct enforcement in U.S. courts, and bring their provisions into sync... 2003  
Chris Wold Implementation of Reservations Law in International Environmental Treaties: the Cases of Cuba and Iceland 14 Colorado Journal of International Environmental Law and Policy 53 (Winter 2003) I. INTRODUCTION. 54 II. The Law of Reservations. 58 A. The Law of Reservations Prior to the Vienna Convention. 58 B. The Vienna Convention and Reservations. 60 1. Permissible Reservations Under Article 195. 60 2. Accepting or Objecting to Reservations under Article 20. 61 III. Cuba, Turtles, and the SPAW Protocol. 65 A. Background. 56 B.... 2003  
Laurence R. Helfer Intellectual Property Rights and the International Treaty on Plant Genetic Resources for Food and Agriculture 97 American Society of International Law Proceedings 33 (April 2-5, 2003) Control of plant genetic resources (PGRs) has been a crucible for sustained global conflict. That conflict arises because the world's plant genetic diversity is allocated unevenly among nation states; moreover, it has been dwindling at an alarming rate over the last few decades. These two forces have led governments and private parties to advocate... 2003  
Gregory Rose International Law of Sustainable Agriculture in the 21st Century: the International Treaty on Plant Genetic Resources for Food and Agriculture 15 Georgetown International Environmental Law Review 583 (Summer, 2003) I. L2-3,T3Introduction 584. II. L2-3,T3Plant Genetic Resources 585. III. L2-3,T3The Extended Family of PGRFA Management Arrangements 587. A. Forum: U.N. Food and Agriculture Organisation. 587 B. Forum: Commission on Genetic Resources. 588 C. Scheme: Global System on Plant Genetic Resources. 589 D. Information Overview: State of the World's PGRFA.... 2003  
Ernest A. Young Is the Sky Falling on the Federal Government? State Sovereign Immunity, the Section Five Power, and the Federal Balance 81 Texas Law Review 1551 (May, 2003) Judge John T. Noonan, Jr. is worried about America. The Supreme Court, he says, has come to see itself as the protector of the fifty states. As such, the Court has embarked on a course of decisions that has, by its own will, moved the middle ground [between federal and state authority] and narrowed the nation's power. But it's not just national... 2003  
George C. Thomas III Islands in the Stream of History: an Institutional Archeology of Dual Sovereignty 1 Ohio State Journal of Criminal Law 345 (Fall, 2003) From one perspective, cases are merely islands in the stream of history. But this is not the perspective of most judges and legal academics, who tend to see cases as an unconnected series of judgments that produce either favored or disfavored results. To focus on cases, or even doctrines, as self-contained universes misses the role that history... 2003  
Melissa A. Verhaag It Is Not Too Late: the Need for a Comprehensive International Treaty to Protect the Arctic Environment 15 Georgetown International Environmental Law Review 555 (2003) I. L2-3,T3Introduction 555. II. L2-3,T3The Arctic Region and its Southern Counterpart 557. III. L2-3,T3Environmental Problems in the Arctic Region 559. A. Persistent Organic Pollutants Perhaps the Most Destructive. 560 B. Five Other Environmental Problems Adversely Affecting the Arctic Region. 562 C. The Arctic Haze Phenomenon. 564 IV.... 2003  
E. Thomas Sullivan Judicial Sovereignty: the Legacy of the Rehnquist Court 20 Constitutional Commentary 171 (Spring 2003) Two hundred years ago, in 1803, the Supreme Court decided Marbury v. Madison. This seminal case established judicial review of legislation and executive action. It may well be the Supreme Court's most important, celebrated opinion. The story of Marbury is well known. Chief Justice Marshall, the author of the opinion, was an ardent Federalist from... 2003  
Thomas A. Bustin , William N. Drake, Jr. Judicial Tort Reform: Transforming Florida's Waiver of Sovereign Immunity Statute 32 Stetson Law Review 469 (Spring 2003) Almost thirty years ago, the Florida Legislature exercised its exclusive power to waive sovereign immunity when it adopted Florida Statutes Section 768.28. The statute, modeled on the Federal Tort Claims Act (FTCA), which has been analyzed in federal court opinions, is straightforward in its language. However, several decades of Florida Supreme... 2003  
Julie M. Spanbauer Kimel and Garrett: Another Example of the Court Undervaluing Individual Sovereignty and Settled Expectations 76 Temple Law Review 787 (Winter 2003) The most marked trait of present life, economically speaking, is insecurity . . . . Insecurity cuts deeper and extends more widely than bare unemployment. Fear of loss of work, dread of the oncoming of old age, create anxiety and eat into self-respect in a way that impairs personal dignity. Where fears abound, courageous and robust individuality is... 2003  
Peter L. Reich Litigating Property under the Guadalupe Hidalgo Treaty: the Sangre De Cristo Land Grant Case 5 Scholar: St. Mary's Law Review on Minority Issues 217 (Spring 2003) I. Introduction. 217 II. Traditional Hispanic Use Rights in the Spanish, Mexican, and U.S. Southwest. 218 III. Indigenous Use Rights Comparisons: Native Americans and Maoris. 223 IV. Use Rights in the Real Property Classroom. 225 2003  
Kevin G. Welner Locking up the Marketplace of Ideas and Locking out School Reform: Courts' Imprudent Treatment of Controversial Teaching in America's Public Schools 50 UCLA Law Review 959 (April, 2003) Courts have recognized two primary, oft-conflicting interests in teacher speech cases: (1) a societal interest in exposing students to a robust exchange of ideas, usually promoted by protecting teachers' academic freedom, and (2) a broad and unspecified, but not unconstrained, state interest in value inculcation, usually promoted by limiting... 2003  
Shawn P. Dontigney Mccoy v. United States: the Eighth Circuit Imposes Excessive Requirements in Administrative Claims and Fails to Apply the Continuous Treatment Doctrine to Properly Postpone a Claim's Accrual 36 Creighton Law Review 213 (February, 2003) The federal government will waive its immunity from suit and allow parties injured by negligent actions of government employees to sue the United States in particular circumstances. Congress expressed the requirements for this waiver in the Federal Tort Claims Act (FTCA). In order to bring an FTCA suit, a claimant must meet certain prerequisites.... 2003  
Peter W. Schroth National and International Constitutional Law Aspects of African Treaties and Laws Against Corruption 13 Transnational Law & Contemporary Problems 83 (Spring 2003) I. Introduction. 83 II. The Treaties and Draft Treaties; Some African Statutes. 87 III. Separation of Powers. 91 IV. Forfeiture and the Prohibition of Excessive Punishment. 95 V. Illicit Enrichment and the Presumption of Innocence. 103 VI. Conclusion. 107 2003  
Ben Golden New Law Gives Guardians Authority to End Futile Treatment for Adults with Retardation 75-FEB New York State Bar Journal 16 (February, 2003) Beginning March 16, 2003, many parental guardians of individuals with mental retardation will have the authority to refuse futile life-sustaining treatment for their adult children as a result of the new Health Care Decisions Act for Persons with Mental Retardation (HCDA). The authority is limited to guardians of individuals with mental retardation... 2003  
Karen Cordry Of State Sovereign Immunity and Prospective Remedies: the Bankruptcy Discharge as Statutory ex Parte Young Relief: a Response 77 American Bankruptcy Law Journal 23 (Winter, 2003) [Sovereign immunity is yet] another reason why, in the words of the incomparable Mel Brooks, It's good to be the King. Or, in the equally incomparable words of Professor Akhil Amar, Sovereign immunity means never having to say you're sorry. I find myself in the unusual position of agreeing with a great deal of what Professor Brubaker says in... 2003  
Justin Hughes Of World Music and Sovereign States, Professors and the Formation of Legal Norms 35 Loyola University Chicago Law Journal 155 (Fall 2003) I. Introduction. 155 II. Railroad Law Versus Civil Rights Law. 156 III. Global Railroad Law. 164 IV. Of Professors and Prophets. 189 V. Conclusion. 202 2003  
Jay F. Stein, Esq , Carlos Marin, Jill Warren, Esq., Alberto Szekely, Marilyn O'Leary, Esq., Maria Elena Giner, Moderator, Panelists Panel: Claims of the United States and Mexico under the Treaty of 1944 and the Municipal Acquisition of Fresh Water Supplies in the Border Region 11 United States-Mexico Law Journal 61 (Spring, 2003) STEPHANIE PINCETL: I am struck by the similarities between the water issues between Mexico and the U.S. and internal water issues within the U.S. For example, the same kinds of questions emerge among users of the Klamath River Basin. I think the fundamental issue is really proactive, long-term planning. Moreover, these allocations were made in a... 2003  
Julia Yoo Participation in the Making of Legislative Treaties: the United States and Other Federal Systems 41 Columbia Journal of Transnational Law 455 (2003) In the post-World War II period, international treaties have increasingly overlapped with the domestic legislative spheres within countries. Such legislative treaties raise significant separation of powers and federalism issues. Through a broad survey and individual case studies, this Note examines how, if at all, federal systems have addressed... 2003  
Jonathan Turley Pax Militaris: the Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance 71 George Washington Law Review Rev. 1 (2/1/2003) I. Introduction. 1 II. Feres and the Creation of a Judicially-Mandated System of Immunity. 6 A. Uniformity in Compensation for Service members. 12 B. Availability of Veterans' Benefits and Compensation. 15 C. Military Discipline and Readiness. 16 III. The Application of the Feres Doctrine in Collateral Areas of Military Governance. 27 A. Achieving... 2003  
Edward J. Imwinkelried Peer Dialogue: the How and What of "Appropriate Validation" under Daubert: Reconsidering the Treatment of Einstein and Freud 68 Missouri Law Review 43 (Winter 2003) (I)n practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by the Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution... 2003  
Robert A. Frazier Pierce County v. Guillen: a Dangerous Road: the Federal Highway Program's Collision with State Court Systems and the Impact on State Sovereignty 56 Arkansas Law Review 573 (2003) It has come as an unwelcome surprise to many commentators that the structure of the federal system imposes any real limitations on the power of the national government. This is somewhat ironic considering that authoritative treatises and hornbooks begin their discussions on the scope of federal power with the acknowledgement that the federal... 2003  
Ginger R. Burton Piercing the State Sovereign Immunity Shield: Utilizing Suit by the United States on Behalf of Individuals to Provide the Complete Remedy for States' Violation of Federal Laws Enacted under Article I 37 Georgia Law Review 1401 (Summer, 2003) The sovereign immunity shield available to states to protect them from suit has become almost impenetrable as a result of what commentators have characterized as the Supreme Court's federalism revival. Among the cases at the forefront of this revival are those that involve the Eleventh Amendment and state sovereign immunity. After the Supreme... 2003  
Robert Victor Wolf, Center for Court Innovation Promoting Permanency 4 Journal of the Center for Families, Children and the Courts 133 (2003) Family drug treatment courts work with drug-addicted parents and guardians charged with abuse or neglect. The goal of family drug courts is twofold: first, to find a permanent and safe home for the children as quickly as possible; second, to link the parent or guardian to drug treatment services, monitor compliance, and achieve long-term sobriety.... 2003  
Glen Staszewski Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy 56 Vanderbilt Law Review 395 (March, 2003) Introduction. 396 I. The Shortcomings of Lawmaking by Initiative and Proposals to Modify Judicial Review. 401 A. The Tension Between Direct Democracy and Representative Government. 401 B. Interpretive Dilemmas in Direct Democracy. 406 C. The Indirect and Selective Nature of Existing Proposals for Modified Judicial Review. 411 II. Rejecting the Myth... 2003  
Kathaleen S. McCormick Resurrecting a Dead Horse: the Constitutional Viability of Vawa's Civil Rights Remedy under the Treaty Power 30 Journal of Legislation 143 (2003) Violence against women is a bad thing--if this does not sound familiar, it should, at least, sound obvious. Precisely why the civil rights remedy (CRR) of the 1994 Violence Against Women Act (VAWA) actually ameliorates the problem is less obvious. The vast majority of scholarly debate on the CRR has been targeted towards arguing or rebutting its... 2003  
Graeme W. Austin Re-treating Intellectual Property? The Wai 262 Proceeding and the Heuristics of Intellectual Property Law 11 Cardozo Journal of International and Comparative Law 333 (Summer 2003) 1. INTRODUCTION. 333 2. LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE WAI 262 PROCEEDING. 341 Te Tiriti o Waitangi/The Treaty of Waitangi. 341 a. The Waitangi Tribunal. 346 3. THE WAI 262 PROCEEDING. 351 4. WAI 262 AND INTELLECTUAL PROPERTY HEURISTICS. 357 A Retreat of Intellectual Property?. 358 a. Re-treating between the Crown and the WAI 262... 2003  
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