Soviet Inheritance Cases in American Courts and the Soviet Property Regime

Many American states have statutes limiting transmission of monies from estates in this country to citizens of countries behind the Iron Curtain. American courts have come under heavy criticism for construing these statutes unfavorably to foreign heirs, especially where transmission to heirs in the Soviet Union is withheld. This article analyzes the relevant American and Soviet law and concludes that American courts, while they have not always been completely objective, nevertheless may be justified in withholding distribution from Soviet citizens

The Decline of Trials in a Legalizing Society

Outcomes determined by trials have been a steadily declining portion of case dispositions in American courts for more than half a century; and for the past quarter century, trials in those courts have been declining in absolute numbers. Although there are differences in detail, the trend line is clear—the trial is declining as the thing—indeed the central, defining, characteristic thing that our courts do. The departure of trials is mourned by some judges, practitioners, and academics but is celebrated by others. The rarity of trials remains hidden from many by their robust media presence. This Article juxtaposes the decline of trials to changes in the role and shape of law in American society and to the continuing increase of laws, regulations, lawyers, and litigation

Regional International Courts in Search of Relevance: Adjudicating Politically Sensitive Disputes in Central America and the Caribbean

The Central American and the Caribbean Courts of Justice (CACJ and CCJ) are hybrid judicial institutions. While their Member States envisioned them as EU-style regional economic courts, they have explored the whole extension of their formally delegated functions and have developed peculiar expertise in matters relating to freedom of movement, human and fundamental rights, and other politically fraught issues. The article explains how two International Courts (ICs) seemingly established to build common markets have come to adjudicate high-stakes political disputes, which, ostensibly, have little to do with regional economic integration. The article posits that the scholarship on delegation to ICs is only partially able to provide an answer to this question. It, hence, suggests an alternative theoretical framework by relying on transnational field theory and reflexive sociology. The article demonstrates that, despite the rhetoric of their founding documents, both the CACJ and the CCJ were only partially established to pursue regional economic integration. Instead, both Courts were fashioned at the crossroads of several—and at times even conflicting-forms of legality, power battles, professional interests, and visions of the world that shaped the Central American and Caribbean legal fields over time. Seen through the diachronic lens of the interests, ideologies, professional practices, and visions of the world of the actors inhabiting the Central American and Caribbean legal fields, the involvement of the two Courts in politically sensitive issues becomes less surprising, and-the article argues-it constitutes part of a strategy of the judges to legitimize the two Courts vis-à-vis their peculiar institutional, political, and social environments

Institutionalizing Innovation: The New York Drug Court Story

The article begins by discussing the problems that drug use is causing in the American Criminal Justice System. The article then discusses the use of drug courts, which have proven effective in reducing drug use and recidivism. It then looks at the potential benefit of drug courts to the criminal justice system and states some of the questions pertaining to drug courts, such as limits and the requirement of specialized judges. The article concludes by looking at what critics have said about the use of drug courts, and by stating that the drug court idea is worth trying

Play it Again, Uncle Sam

Tashima, currently a federal judge, relates his experience in a Japanese American internment camp at Poston AZ during WWII. The unjust internment was in part a failure of the federal courts to protect the constitutional rights of American citizens

Historical Practice and the Contemporary Debate Over Customary International Law

Response to: Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009). A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where necessary to vindicate the “perfect rights” of foreign nations. In so doing, American courts have protected the prerogatives of the political branches to “recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace.” Although Professors Bellia and Clark disavow any attempt “to settle all questions of how customary international law interacts with thefederal system,” they do suggest that their approach represents a middle ground between proponents of the “modern position” that CIL simply is federal common law and critics of that position, who insist that CIL may be applied by American courts only where it is incorporated into the domestic legal system through an affirmative act by the political branches. This response makes three points. First, I quibble with the historical account offered by Professors Bellia and Clark on two minor, yet at least somewhat significant, grounds: The debate over reception of the common law at the federal Constitutional Convention shows greater early skepticism about judge-made common law than Bellia and Clark suggest; also, the jurisdictional provisions of Article III covering cases implicating foreign affairs were not intended fully to centralize power over such cases in federal courts because they left concurrent jurisdiction in the state courts. Second, I question the extent to which the Founding Era history is directly relevant to contemporary debates about how to treat CIL. Finally, I contend that what does the real work in the Bellia and Clark approach is simply constitutionally-grounded concerns about the separation of powers in foreign affairs cases, not anything about CIL per se. Their position thus reduces to the largely uncontroversial claim that federal courts may make federal common law to protect theseconstitutionally-grounded federal interests, and they may sometimes draw the content of federal common law from international law

Whither Patent Litigation in India?

Patent litigation in India is growing. Awareness about patents and the possibility of commercial exploitation of patents is increasing. This is due to better laws and improving registration facilities. Indian firms are taking the patent disputes to courts, as was and is very common in the United States. More than a century back, disputes about electric bulb, telephone and automobile have been resolved in the American courts. Indian courts never had as much patent litigation as the American and English courts had. In the last ten years or so, things have changed. Post-WTO, Indian law has been amended and patent protection has become stronger. Patent law and protection provided by it is being increasingly used as a potent tool in competitive strategy formulated by many companies. The courts are playing a very important role in ultimately resolving the disputes and interpreting the law. There is, however, a need to expedite the process of resolution of such disputes.

Judicial Oversight in the Comparative Context: Biodiversity Protection in the United States, Australia, and Canada

How effective are courts as policymaking institutions? Generally speaking, courts play a far larger role in American biodiversity law than they do in comparable Australian and Canadian statutory programs. As a result, studying endangered species protection offers a useful way to identify and isolate the policy impacts of judicial intervention. In the two cases I examine, the American system functioned at least as well as, and sometimes better than, the biodiversity programs in Australia and Canada. Contrary to most scholarship on the topic, lawsuits did not appear to slow the American policymaking process significantly; rather, litigation helped enforce important legal provisions and forced government officials to address critical shortcomings in their regulatory actions. At least in these cases, then, litigation acted as a productive and useful part of the policymaking process.Governmen

The Growing Influence of the Courts over the Fate of Refugees

A number of migration scholars suggest that domestic courts have become the key protective institution for refugees. How can we explain this claim? One prominent explanation identifies group litigation as the key source of the increasing influence of the courts. How well does this explanation travel empirically? The article evaluates this explanation by examining the puzzling behaviour of German refugee NGOs. They have not entered the legal arena directly (either as parties or as interveners), nor have they concentrated on developing extensive litigation campaigns. Still, they are remarkably ‘judicialized’: their frequent engagement with the law in other respects has heightened their legal consciousness. Why have German refugee NGOs made such different choices than their North American counterparts and what do these choices tell us about the expanding influence of the courts over the fate of refugees in Germany and North America? To make sense of the different choices that these organizations have made, we need to understand the role that institutional norms and procedures, in particular policy legacies, have played in directing the behaviour and identity of these groups. For a number of reasons, German refugee NGOs historically have been discouraged from directly accessing the courts in favour of indirect participation. Since Canadian and American refugee organizations follow a pattern closer to the expectations of the (largely North American) literature on the subject, we need to be more careful in thinking through our presuppositions when constructing a theory of the worldwide expansion of judicial power