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Ruling the Law: Legitimacy and Failure in Latin American Legal Systems
Jorge L. Esquirol
The North-South global divide is as much about perception and prejudice as it is about economic disparities. Latin America is no less ruled by hegemonic misrepresentations of its national legal systems. The European image of its laws mostly upholds legal legitimacy and international comity. By contrast, diagnoses of excessive legal formalism, an extraordinary gap between law and action, inappropriate European transplants, elite control, pervasive inefficiencies, and massive corruption call for wholesale law reform. Misrepresented to the level of becoming fictions, these ideas nevertheless have profound influence on US foreign policy, international agency programs, private disputes, and academic research. Jorge L. Esquirol identifies their materialization in global governance - mostly undermining Latin American states in legal geopolitics - and their deployment by private parties in transnational litigation and international arbitration. Bringing unrelenting legal realism to comparative law, this study explores new questions in international relations, focusing on the power dynamics among national legal systems.
- Challenges the image of permanent failure of Latin American law
- Demonstrates the role of legal ideology in comparative law
- Delineates a relatively new field of study in international relations, focusing on the power dynamics among national legal systems
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National Report for the Venezuela (2020)
Manuel A. Gomez and Gilberto A. Guerrero-Rocca
This National Report describes the legal framework of domestic and international arbitration in the Bolivarian Republic of Venezuela (“Venezuela”). It includes the most relevant and recent case law, and other important aspects that have shaped the development and use of commercial and investment treaty arbitration in recent times. This Report also discusses the regulation and use of mediation/conciliation given its distinction – alongside arbitration – as a non-judicial form of dispute resolution. The description offered here also considers the social, economic and political context insofar it is relevant to the discussion about arbitration in Venezuela. This Report is divided into nine chapters, including this introduction (Chapter I). Chapters II to VII cover different aspects of commercial arbitration, from the arbitral agreement to the means of recourse against the award. Chapter VIII discusses the current state of mediation/conciliation in Venezuela, and Chapter IX addresses the main issues involving investment treaty arbitration. An unofficial English translation of the Commercial Arbitration Law of 1998 (Ley de Arbitraje Commercial, “CAL”) is included as Annex I. Venezuela modernized its arbitration legislation in the late twentieth century with the ratification of five major treaties, the enactment of a special commercial arbitration statute, and the inclusion of a constitutional provision granting arbitration – and other alternative dispute resolution mechanisms – a preeminent place in the country's legal system. (1) In addition – during the nineties – Venezuela entered into a number of bilateral investment treaties (“BITs”) with other countries, which included arbitration provisions as the exclusive means to resolve any disputes arising between foreign investors and Venezuela as a host state. As we will explain later, some of these BITs, noticeably the ones with The Netherlands, Canada and Spain, served as the basis for a number of investor-state arbitration claims brought against Venezuela during the last decade. Most of the cases arose from the expropriations of assets by the Venezuelan government, which affected both domestic and foreign investors and garnered the attention of the international arbitration community. Predictably, after the initial upsurge of claims logged against Venezuela, the government terminated the BIT with the Netherlands, denounced the ICSID Convention, and took other protective measures to prevent future claims. We discuss some of the issues surrounding investment arbitration in Chapter IX. Since the majority of this report is focused on commercial arbitration, the following chapter describes laws adopted, and the most relevant judicial decisions that have contributed to shape the development of arbitration in Venezuela. The subsequent parts if this report will delve into other important features of this dispute resolution mechanism, thus offering a comprehensive picture of its current status.
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The Legal Legacy of the Special Court for Sierra Leone
Charles C. Jalloh
This book examines whether the Special Court for Sierra Leone (SCSL), which was established jointly through an unprecedented bilateral treaty between the United Nations (UN) and Sierra Leone in 2002, has made jurisprudential contributions to the development of the nascent and still unsettled field of international criminal law. The monograph, which focuses on the main legal legacy of the SCSL, opens with an examination of the historical and political circumstances which led to the outbreak of a notoriously brutal civil war in Sierra Leone which lasted betweenMarch1991 and January 2002 and led to the deaths of approximately75,000 people. Following a discussion of the creation, jurisdiction, and the trials conducted by the SCSL, the author examines the SCSL’s unique personal jurisdiction over persons bearing “greatest responsibility” for the serious crimes committed in Sierra Leone and the implications of its use in future ad hoc international tribunals; the prosecution of the novel crime of “forced marriage” as other inhumane acts of crimes against humanity; the prosecution of the war crime of recruitment and use of children under the age of fifteen for the purpose of using them to participate actively in hostilities; as well as issues of immunity for the serving head of state of Liberia, which President Charles Taylor sought to invoke to block his own trial for international crimes before the SCSL. The book then discusses the status of blanket amnesties under international law, and critically evaluates the SCSL’s ruling that such a domestic measure could not block prosecution of universally condemned crimes before an independent international tribunal. Lastly, the book evaluates the tenuous interaction between truth commissions and special courts given both their simultaneous operation in Sierra Leone and distinctive mandates aimed at reconciliation and punishment. The author demonstrates that the SCSL, as the third modern international criminal tribunal supported by the UN, made some useful jurisprudential additions on many of these topics, and in some cases broke new ground, and that these represent a valuable legal and judicial contribution to the development of the nascent field of international criminal law.
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Florida Wills, Trusts, and Estates Cases and Materials, Fourth Edition
Elena Maria Marty-Nelson and Eloisa Rodriguez-Dod
Building on the success of the prior editions of this highly-regarded casebook, this fourth edition continues its innovative approach of covering trusts as extensively as it does wills. The casebook’s coverage recognizes modern trends in wills, trusts, and estates planning. This edition of Florida Wills, Trusts, and Estates is the first casebook to include analysis of the recently enacted Florida statutes permitting the execution of wills, trusts, and other related documents electronically. Although Florida law is the focus, this casebook also discusses laws from other states and uniform acts approved by the Uniform Law Commission. The fourth edition also includes new uniform acts, such as the Uniform Electronic Wills Act (E-Wills Act).
To encourage students to view wills, trusts, and estates issues from the standpoint of both planners and litigators, the authors include numerous questions that require students to think about ways to draft or plan to avoid litigation, while accomplishing clients’ goals. While the casebook is intended for the basic wills and trusts course, it may also be used in advanced trusts and estates courses, as it includes chapters on estate planning, powers of appointment, advanced directives, and probate.
The rules governing wills and trusts continue to be state-law-driven. The authors’ philosophy is that students gain critical insights into complex issues by studying the laws of one jurisdiction as a whole. Florida law is a perfect platform for this endeavor because it has extensive probate and trust codes and significant case decisions addressing current and cutting-edge issues.
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Constitutional Analysis in a Nutshell, 3d
Thomas E. Baker
This authoritative text provides a framework for understanding individual liberty and governmental power and the institutional role played by the Supreme Court of the United States. Coverage in this new improved edition includes all the major topics of the subject: judicial review: commerce clause and state powers: federalism: separation of powers: congressional and executive powers: and individual civil rights and civil liberties. Includes diagrams that aid understanding of the fundamentals of our system of government. Extremely accessible and comprehensive — this is a paperback course in American Constitutional Law.
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An Integrated Approach to Defending Those with Mental Health Conditions
Eric R. Carpenter
When mental health professionals first begin working with a military population, they may quickly notice that the military justice system is uniquely challenged by servicemembers who have mental health problems. Unlike the civilian justice system, where those with serious mental health problems frequently cycle in and out of the criminal courts, such cases are relatively rare in the military system. Compared with the civilian population, the military population is relatively healthy: The military screens its incoming population, which tends to reduce the percentage of people who have very serious mental health problems. One outgrowth of this is that although mental health professionals in the civilian justice system gain experience dealing with the seriously mentally ill, those in the military justice system do not tend to have that depth of experience. People in the civilian system with milder forms of mental illness may never interact with the criminal justice system. Their illness may manifest in behaviors that are not criminal. For example, if they show up late to work (or not at all) because they have a hard time getting out of bed, they might lose their job-but they will not go to trial. If their illness manifests in behaviors that are criminal, such as using cocaine or marijuana to self-medicate, they may never be caught, and even if they are, law enforcement may not be interested in spending taxpayer money prosecuting their cases.
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Introduction: Origins and Issues of the African Court of Justice and Human and Peoples' Rights
Kamari M. Clarke, Charles C. Jalloh, and Vincent O. Nmehielle
In June 2014, at its summit in Malabo, Equatorial Guinea, the Assembly of Heads of State and Government ('Assembly') of the African Union adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the 'Malabo Protocol'). The so-called Malabo Protocol was one of eight legal instruments adopted by African Union (AU) leaders, but undoubtedly one of its most significant. The significance stems, partly, from the consideration and addition of a third section to the proposed African Court of Justice and Human Rights (ACJHR) which had already formally anticipated the possibility of a regional tribunal with jurisdiction over human rights issues as well as general disputes arising between African States. The new Court will, once its statute enters into force upon achievement of the 15 required ratifications additionally possess the competence to investigate and try 14 international, transnational and other crimes in a highly ambitious tribunal with three separate chambers and jurisdictions:' (1) the General Affairs Section, (2) the Human and Peoples' Rights Section and (3) the International Criminal Law Section. The merger of these three chambers addressing inter-state disputes, human rights and penal aspects into a single court with a common set of judges represents a significant development in Africa and in wider regional institution building and law making.
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LexisNexis Practice Guide: Florida DUI Law
H. Scott Fingerhut and Robert S. Reiff
With its easy-to-navigate table of contents, concise on-point writing, and abundant practical features, LexisNexis Practice Guide: Florida DUI Law provides an excellent source to help attorneys find answers to their questions about Florida DUI practice.
• Combines on-point coverage of the law with practical, how to insights developed through the authors' years of practice experience.
• Within each chapter, warnings, timing alerts, strategic points, and exceptions point out potential issues and help prevent practice missteps.
• Checklists highlights important considerations and procedural steps in building a case.
• The forms appendix contains dozens of sample forms for use in your DUI practice.
• Annual updating with replacement volumes ensures that all coverage remains current. -
Legal Professionals in Latin American in the Twenty - First Century
Manuel A. Gomez
It is difficult to imagine a group with a greater influence than legal professionals on the organization and development of the modern Latin American state. By legal professionals I am not only referring to those licensed to practice law and represent clients, but also the judges, magistrates, law enforcement officials, and other individuals formally trained whose professional occupation is to liaise between the formal legal system and society at large. By this measure, law students should also be considered legal professionals, albeit their role and contribution is arguably different and more limited than the one performed by judges, lawyers, and others. Legal professionals have been vital to many activities associated with the functioning of the formal legal system, including lawmaking, interpreting laws, adjudicating disputes, offering legal advice, and obviously participating in the enforcement of judicial and administrative decisions. Legal professionals have also been at the heart of the political process and the functioning of the state, since colonial times (Pérez-Perdomo 2006). Lawyers are commonly found in many government agencies, and public offices, across the spectrum of the state’s bureaucracy throughout the region (Falçao 1984, 1988; Fix-Fierro and López Ayllón 2003). The contribution of Latin American legal professionals to society goes beyond the public sphere, as they have also been key players in the private sector (Gómez and Pérez-Perdomo 2017a). From the traditional roles of legal advisors, and in-house counsel, generally reserved to lawyers; legal professionals also act as corporate officers, political brokers, and lobbyists. Moreover, certain fields like the protection of the environment or human rights have also been primarily shaped by the work of legal professionals through their involvement in policymaking, advocacy, and activism (Gómez 2010; Rodríguez-Garavito 2010; Dezalay and Garth 2002).
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A Classification of the Crimes in the Malabo Protocol
Charles C. Jalloh
Today, when it comes to penal matters, legal scholars and practitioners of international law tend to draw a distinction between 'international crimes' and 'transnational crimes'. But it would be misleading to suggest that there is consensus on the precise meaning of these terms. Authors have assigned them a wide variety of definitions in the literature. For our purposes, the phrase 'international crimes' should be taken to mean 'breaches of international rules entailing the personal criminal liability of the individuals concerned'.' This conception is similar to, but broader than, that preferred by a group of scholars who have described 'international crimes' as 'those offences over which international courts or tribunals have been given jurisdiction under general international law'. In contrast, the notion of 'transnational crimes', apparently conceived by a United Nations body, is said to describe 'certain criminal phenomena transcending international borders, transgressing the laws of several states or having an impact on another country'. Or, put more succinctly, 'transnational crimes' is a reference to 'crimes with actual or potential trans-border effects' . That is to say, those offenses 'which are the subject of international suppression conventions but for which there is as yet no international criminal jurisdiction'.
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The Place of the African Court of Justice and Humanand Peoples' Rights in the Prosecution of Serious Crimes in Africa
Charles C. Jalloh
The present enforcement system of international criminal law essentially rests on three main pillars. First, there are prosecutions of international crimes within the national courts of the territorial states where the offense occurred. This could be through the regular criminal courts of those states or so-called "hybrid" or "mixed" chambers specifically created for that purpose by the state alone, or with the help of the United Nations (UN), as was the case in Cambodia, Bosnia-Herzegovina (BiH), East Timor, Lebanon, or Kosovo.' Second, there are prosecutions within international courts, whether ad hoc or permanent. The former dates back to the Nuremberg and Tokyo International Military Tribunals. Those pioneers were followed more recently by the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), all of which were either created directly as subsidiary bodies of the UN or authorized by its Security Council under its mandate to ensure the maintenance of international peace and security.2 There is, of course, also the multilateral treaty-based International Criminal Court (ICC), which as of writing, comprises 123 States Parties from all regions of the world and is endorsed in principle by 15 other signatories.
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Léon Duguit
M C. Mirow
French jurist Léon Duguit (1859-1928) was a theorist of the modern state and its relationship to law. His work on the nature of property and ownership, defining them as social functions, was an important step towards dismantling the conceptual wall between public and private law. He sought to apply sociological and scientific analysis to his study of law and the state. This chapter explores Duguit’s thought with particular reference to Roman Catholicism as a deeply embedded aspect of French culture. While little of his work expressly invokes Christianity, his turns towards solidarity and public service in the area of public law and his development of the social function of property in the area of private law reveal a level of concordance with Roman Catholic thought in late-nineteenth- and early-twentieth-century France. Despite Duguit’s lack of engagement with the Church’s teachings in his scientific exploration of the state and law, his relationship to Catholicism remains difficult to determine. The Church and Christianity presented themselves to Duguit as social and political phenomena to be recognized, respected, observed, and theorized. As a good lay sociologist of law, Duguit considered the Church in his work and throughout his life.
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Léon Duguit and the Social Function of Property in Argentina
M C. Mirow
Despite its early introduction to Argentina in 1911, the doctrine of the social function of property was not quickly appropriated into the Argentine legal system. Only after a period of more than thirty-five years did this concept of property find expression in this country through the Constitution of 1949, the Peronist constitution drafted under the guidance of Arturo Enrique Sampay. Duguit's writings formed part of a broader understanding of the social function of property that was informed by various scholars and sources, and particularly by works on Christian humanism and the social doctrine of the Roman Catholic church. Although mentioned in the debates of the Argentine Constitution of 1949, Duguit was only one of a variety of sources employed by advocates of the doctrine, and his direct influence in the area was significantly less than one might expect considering the historical link between his lectures in Buenos Aires and the creation of the doctrine.
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The Supreme Court, Florida Land Claims, and Spanish Colonial Law
M. C. Mirow
After Florida became a U.S. territory in 1821, Congress established commissions to determine private land ownership in the territory. A series of federal laws on this subject followed until the mid-nineteenth century. Commissioners and the decisions of territorial courts, such as the Superior Court of East Florida, determined many claims. Some large claims were appealed to the Supreme Court of the United States where Spanish colonial law, more properly "derecho indiano" as used in this Chapter, was employed to decide questions of title to land. With the bulk of these appeals in the 1830s and 1840s, the Supreme Court was the final arbiter in approximately sixty cases of titles to land in Florida. The stakes were high. Disputed grants often exceeded 10,000 acres and some claims exceeded one million acres. The largest successful claim was for 1,200,000 acres, approximately the size of the state of Rhode Island. Two larger claims for 1,850,000 and 12,000,000 acres were denied. The Supreme Court confirmed grants totaling nearly two million acres. These cases have received very sparse or no treatment in the standard histories of the Court during this period.
This study focuses on the way the Supreme Court dealt with these cases with special attention to its use of derecho indiano, an early. and unusual example of the Court's necessary use of foreign law. It examines the Court's sources, skill, limitations, and biases when addressing complex issues of land title under a foreign legal system. Some lawyers developed a level of expertise in these matters and were consulted in such cases. Although focusing on the Supreme Court, this contribution notes that the records of lower courts and claims commissions are promising and neglected sources for studying the development of comparative law and legal methodologies in U.S. tribunals.
Part II of this Chapter describes the applicable treaty provision, the commissions established by statute, and the Supreme Court's jurisdiction in these cases. Part III analyzes the cases determined by the Supreme Court, and Part IV delves into the Court's use of derecho indiano to decide claims to land.
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Preserving the Social Enterprise’s Mission
Antony Page
Growing numbers of employees, consumers, and investors want companies to be truly good; these stakeholders will accept lower economic returns in order to support companies that prioritize sustainability, fair wages, and fair trade. Unlike charities or non-profit organizations, such companies - or social enterprises - are not only permitted but also expected to produce an economic return for investors. Yet, unlike traditional business ventures, social enterprises have no obligation to maximize profits, even on a long-term basis. In this comprehensive volume, Benjamin Means and Joseph W. Yockey bring together leading legal scholars and practitioners to offer an authoritative guide to social enterprise law and policy. The Cambridge Handbook of Social Enterprise Law takes stock of the field and charts a course for its future development. It should be read by entrepreneurs, investors, practitioners, academics, students and anyone else interested in how companies are evolving to address new demands for capitalism with a conscience.
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Bullying in the Legal Profession
Kerri Stone
This volume embodies the twin purpose of highlighting topics beyond the purview of themes commonly associated with workplace bullying, emotional abuse and harassment and of presenting insights into those occupations, professions and sectors which either have received extensive research attention or hold a pronounced propensity to trigger workplace bullying, emotional abuse and harassment. Section 1, which comprises special topics, depicts the intersection between workplace bullying, emotional abuse and harassment and specific circumstances such as whistleblowing and customer abuse or particular attributes such as violence and ostracism. In so doing, it extends the boundaries of the substantive area, stimulating new themes for further inquiry and indicating new areas for action. Section 2 draws attention to how misbehaviour inheres in particular kinds of tasks and livelihoods due to job design, work organization and other elements such as power, external environment, employment patterns and so on. An array of occupations, professions and sectors such as academe, nursing, law, creative and cultural work, precarious work and so on is covered, reflecting emergent developments in the labour market so as to include those with long-standing and considerable research findings and those where empirical inquiries are more recent.
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Genocide and Other International Crimes by Unincorporated Groups: Will There Be Loopholes for Them in the African Court?
Hannibal Travis
Corporate criminal liability may fill a gap in the traditional framework for punishing individual actors to deter mass atrocities. Corporate policies, according to many scholars, reward and coordinate the activities of natural persons who might have acted differently as individuals. The argument of this chapter is that the same may be true of organizations other than corporations, and that closing the many gaps left in the net cast around crimes against humanity and war crimes will require holding noncorporate organizations accountable in court.
At the Nuremberg Trial, US prosecutor Robert Jackson famously compared aggression to assault with bare fists, which was a crime under all "civilized" laws, and he argued that multiplying the offense by a million and adding machine guns and explosives to the mix was no defense.' Similarly, the hiring of "hit men" or the inflaming of social tensions to the point of assault or riot is also an offense under civilized laws. The question arises, does crossing national borders and multiplying the scale of the offense by thousands or millions - while adding missiles, mortars, and tanks to the mix - immunize from penal remedies what would otherwise be an offense?
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The Right of Return to Iraq Under International Law
Hannibal Travis and Shamiran Mako
This volume brings together critical legal scholarship and theories of forced migration that draw attention to the dual role of law as it pertains to transitional justice and mass violence resulting in forced population movements. Contributors to the volume analyze how forced migration in the Global South have impacted contemporary realities. While there has been considerable focus on refugees and asylum seekers from conflict zones, there is less attention paid to the far more numerous internally displaced peoples (IDPs), stateless people, warehoused refugees, non-status displaced and returnees in the Global South. In this volume, a multidisciplinary group of scholars question the reasons behind the restrictive choices that lock us into area studies modalities instead of genuine interdisciplinary analysis by linking the traditional subject matter of transitional justice with the realities of forced migration in the Global South.
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Infield Fly Rule Is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule
Howard Wasserman
The Infield Fly Rule is the most famous rule in baseball and perhaps all of sports. It is the most misunderstand rule in baseball and all of sports, which also makes it the most infamous rule. Drawing on legal arguments, interviews with experts, and a study of every infield-fly play in eight Major League seasons, this book tells the complete story of the Rule. The book covers the Rule's history from the 19th century to the modern game, its underlying logic and supporting arguments, recent criticisms and calls for repeal, the controversies and confusion it creates, and its effect on how the game is played.
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Big Law in Brazil: Rise and Current Challenges
Mariana Conti-Craveiro and Manuel A. Gomez
The chapter is aimed at assessing how the so-colled Big Law market has been formed in Brazil, its current features as well as possible challenges for the future. To understand the Brazilian market for Big Law, though, it is vital to consider the institutional and general market framework in which it is embedded. Thus, some assumptions shortly described below must be kept as background for the arguments discussed and/or further explained in the following sections. Some of these aspects are peculiar to Brazil, while others can be found also in different Latin American countries, as presented in the other chapters of this volume.
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The Geopolitics of Constitutionalism in Latin America
Jorge L. Esquirol
Constitutionalism in the Americas unites the work of leading scholars of constitutional law, comparative law and Latin American and U.S. constitutional law to provide a critical and provocative look at the state of constitutional law across the Americas today. The diverse chapters employ a variety of methodologies – empirical, historical, philosophical and textual analysis – in the effort to provide a comprehensive look at a generation of constitutional change across two continents.
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Understanding OFAC’s New Restrictions on Direct Financial Transactions with the Cuban Government
Jose Gabilondo
When Donald Trump became President, he promised to reverse the normalization process with Cuba begun by Barack Obama. In June 2017, President Trump announced a new framework for Cuba policy designed to redirect economic activity away from businesses operated by the Cuban military and towards the private sector. To that end, the US Department of the Treasury’s Office of Foreign Assets Control amended its Cuban Assets Control Regulations (CACR) to impose new travel and business restrictions with respect to Cuba. This chapter examines one of these new CACR provisions—31 C.F.R. §515.209, Restrictions on direct financial transactions with certain entities and subentities. Overall, 31 C.F.R. §515.209 creates a special regime of heightened sanctions within the Cuba sanctions program. The new provision promotes fissures and differentiation within the Cuban government by stigmatizing some sectors, i.e., military, intelligence, security, and privileging others. Another seeming goal is to use the licensing apparatus incident to better surveil changes in Cuban government. In effect, the new sanction sets out Platt-style parameters that reflect how the United States wants Cuban markets and state structure to evolve.
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Big Law in Venezuela: From Globalization to Revolution
Manuel A. Gomez
This chapter focuses on Venezuelan corporate lawyers during the period 1994~2014, a time in which the country experienced abrupt changes in its political orientation and economic policies. In 1989, as a response to a crisis partially credited by a failure of the model of import substitutions and national industrialization. Venezuela opened its economy to the world. allowing foreign investment. freeing export-import trade and eliminating currency exchange controls. In particular in 1994, following a policy of economic openness touted as "oil opening'' (apertura petrolera) Venezuela allowed the entry of foreign investors in the oil business- an acti-rity that had been reserved to the state since 1974--and conversely, Venezuela acquired important refineries and expanded its business presence into foreign countries. Even though the oil opening policy was short lived. it had a profound impact on the transformation of Venezuelan business law firms and the legal profession at large. Starting in the early 2000s, Venezuela's political social and economic landscape changed drastically, which affected all segments of society, including the business sector, and the lawyers that serve it.
