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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.
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Corporate Lawyers and Multinational Corporations in Latin America and Spain: 1990-2015
Manuel A. Gómez and Rogelio Pérez-Perdomo
Latin American law firms resemble the so-called «Big Law" of the United States. As a result, this book uses the term “Big Law" to also refer to the Latin American firms that share those same features. The chapters that comprise this volume address the evolution and recent changes affecting the corporate legal sector providers in the selected countries, taking into account their specific social, political, and economic context.
The research presented here is drawn from a combination of interview and quantitative data, historical records, and other sources, which enabled the authors to paint a dense and contextualized sketch of the corporate legal services sector, and more generally about the legal profession of each country. This book covers the majority of countries in Latin America. It includes studies about countries ranging from the main economies like Brazil and Mexico to smaller ones like Nicaragua. This book also includes a chapter on Spain, given the strong historical, economic and political ties between Latin America and Spain, and the recent expansion of Spanish law firms into Latin America. This book pays special attention to the heightened interaction between Spanish and Latin American enterprises and their lawyers during recent times.
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First Amendment Law Freedom of Expression & Freedom of Religion, 4th ed.
Arthur D. Hellman, William D. Araiza, Thomas E. Baker, and Ashutosh Bhagwat
This book reflects a basic truth: First Amendment law is caselaw. It thus edits cases lightly, and presents them in the Court’s own doctrinal structure, in order to reinforce the student’s learning of the law as the Court actually developed it. Notes and questions provide guidance in working with the opinions. Non-case materials (including drafts and memoranda from the Justices' private papers) are used to shed light on what was established by existing precedents and how a new decision changes (or does not change) the law. By giving primacy to the Justice' won words and the Court's own doctrinal structure, the book offers maximum flexibility for teachers to place their own imprint on the course.
New features in the Fourth Edition include:
- A reorganized chapter order reflecting the Court’s increased focus on the content-based/content-neutral distinction;
- A new, freestanding campaign finance chapter;
- An expanded treatment of the history and values of the Religion Clauses; and
- New problems based on recent appellate cases and news stories.
It also features a detailed Teacher's Manual offering comprehensive instructional guidance including references to online resources.
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Toward Greater Synergy between Courts and Truth Commissions in Post-Conflict Contexts: Lessons from Sierra Leone
Charles C. Jalloh
Martin Luther King, Jr. once said 'the arc of the moral universe is long, but it bends toward justice.' Testing the optimism of that claim were the many fits and starts in the struggle for human rights that King helped to catalyze. The same is true of other events in the last half-century, from resistance to apartheid and genocide to equal and fair treatment in domestic criminal justice systems, to the formation of entities to prevent atrocities and to bring their perpetrators to justice. Within this display of myriad arcs may be found the many persons who helped shape this half-century of global justice-and prominent among them is William A. Schabas. His panoramic scholarship includes dozens of books and hundreds of articles, and he also has served as an influential policymaker, advocate, and mentor. This work honours William A. Schabas and his career with essays by luminary scholars and jurists from Africa, Asia, Europe, and the Americas. The essays examine contemporary, historical, cultural, and theoretical aspects of the many arcs of global justice with which Professor Schabas has engaged, in fields including public international law, human rights, transitional justice, international criminal law, and capital punishment.
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Commodity Exchanges and Regulation
Jerry W. Markham
The U.S. Commodity Futures Trading Commission (CFTC) intensively regulates commodity futures, options, and swaps pursuant to the provisions of the Commodity Exchange Act of 1936. The Securities and Exchange Commission (SEC) and federal banking agencies also have some jurisdiction over derivative financial instruments. This chapter describes the CFTC regulations, including registration requirements for designated contract markets, clearinghouses, and various swap market participants. It also describes the financial responsibility requirements imposed on futures commission merchants and safeguards for customer funds in the futures markets. Additionally, the chapter addresses prohibitions against misleading sales activities, deceptive trading practices, and price manipulations. Finally, it reviews the role of the SEC and bank regulators in regulating financial derivative contracts, particularly securities derivatives and foreign currency exchange transactions.
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Regulation of Bank Financial Service Activities, Cases and Materials
Jerry W. Markham and Lissa L. Broome
This book has been completely revised and updated, referencing Dodd-Frank and developments after Dodd-Frank. The financial crisis is extensively discussed, including excerpts from the Financial Crisis Inquiry Commission Final Report. The latest in capital requirements is also included. In addition, the book refers frequently to the June 2017 report from the Treasury responding to President Trump’s Executive Order of February 3, 2017, setting forth core principles to guide regulation of the U.S. financial system. The new edition of the book contains new sections on the structure of the banking industry (with updated charts and graphs), shadow banking, fintech, Madden v. Midland Funding, TILA-RESPA Integrated Disclosure Rule (TRID), Qualified Mortgages (QM) and Qualified Residential Mortgages (QRM), deposit advance products, alternative payment methods, the latest on bank capital, CFPB enforcement, updated comparative regulation (UK, Germany, Japan, and the EU), a consolidated section on anti-money laundering (AML), sanctions, and tax evasion (Foreign Account Tax Compliance Act, FATCA). The statutory supplement has also been updated and the statutory provisions are cross-referenced to Dodd-Frank sections which amend them.
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Spanish Courts
M C. Mirow
Professor M.C. Mirow’s lead-off essay points out that while Spain devoted considerable resources to its New World possessions, Florida almost always was considered a region of minor, albeit strategic, outposts. Thus, its system of justice never fully developed into the standard structures of Spanish colonial government. Military governors, occasionally assisted by legally trained advisors known as asesores, acted as judges. The question of whether local municipal officers—known as alcaldes—served as magistrates remains an open one. Regardless, there were numerous tribunals in Spanish Florida. Litigants and officials recognized jurisdictional divisions and utilized distinct procedures for different kinds of cases, and criminal and civil matters were handled in ways consistent with Florida’s membership in the colonial Spanish world. In their administration of Florida, Spanish officials generated numerous documents. As Mirow notes, many of these have yet to be explored and remain waiting for researchers in archives in Cuba and Spain (and, increasingly, on the web).
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Juan Solórzano Pereira
M. C. Mirow
This biography of the seventeenth-century jurist Juan Solórzano Pereira analyzes his major writings with particular focus on his justifications of Spanish activity in the Americas. The study addresses his views of papal authority, indigenous peoples, and Spanish rule through his use of Roman Catholic sources and doctrine.
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Spanish Law and its Expansion
M. C. Mirow
This chapter provides an overview of the legal aspects of Spain's enterprise in the Americas. It addresses the uses of law in discovery, exploration and conquest; Castilian law before its expansion to new territories; the use of law to justify conquest; slavery and indigenous labour; institutions; sources of law; legal actors; and Spanish law after independence. It also presents some of the present debates surrounding the nature and construction of derecho indiano.
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Big Law in Central America and the Dominican Republic: Growth Strategies in Small Economies
Carlos Taboada and Manuel A. Gomez
Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua once formed a single Spanish colony and did not become independent until the nineteenth century, when Panama and the Dominican Republic also became independent. Since then, each of these countries have taken their own path, developed their own legal systems and confronted their own economic, political and social realities. Interestingly, in the eyes of many multinational corporations, these countries still form a somewhat homogeneous sub-region.
Treating these relatively small economics as a single sub-region within Latin America allows multinationals to take advantage of economics of scale. In any case, the geographical proximity, common language and regulatory proximity between these countries seem to justify the unitary approach. Except for the Dominican Republic, which is part of an island, the rest are all neighboring countries ( Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica and Panama) sharing at least one border with another. The official language in each of these countries is Spanish, and their legal systems are rooted in the civil law tradition, which they inherited from Spain.
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Copyright Class Struggle: Creative Economies in a Social Media Age
Hannibal Travis
Earning an income in our time often involves ownership of or control over creative assets. Employing the law and philosophy of economics, this illuminating book explores the legal controversies that emerge when authors, singers, filmmakers, and social media barons leverage their rights into major paydays. It explores how players in the entertainment and technology sectors articulate claims to an ever-increasing amount of copyright-protected media. It then analyzes efforts to reform copyright law, in the contexts of 1) increasing the rights of creators and sellers, and 2) allocating these rights after employment and labor disputes, constitutional challenges to intellectual property law, efforts to legalize online mashups and remixes, and changes to the amount of streaming royalties paid to actors and musicians. This work should be read by anyone interested in how copyright law - and its potential reform - shapes the ownership of ideas in the social media age.
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