11929 research outputs found
Sort by
Neglected Riches: Exposing China’s Selective Default on the Hukuang Railway Bonds and the Avenue for Financial Accountability Under the Successor Government Doctrine
Get PDFThe People’s Republic of China (“P.R.C.”) is in selective default for refusing to pay back private investors from the Hukuang Railway Bond default of 1911. The P.R.C. is the successor government to the Republic of China (“R.O.C.”) and Qing Dynasty. This Comment argues that though it is the successor government, the P.R.C. retains the legal rights and obligations of the former government and is the legal inheritor of these debts. This Comment takes this syllogism one step further and argues that the successor government doctrine is customary international law—applying the lessons from the Russian bond default of 1918. Finally, this comment argues that because the successor government doctrine is customary international law, the P.R.C. is in violation of the 1980 U.S.-Sino investment treaty. This Comment recommends that the U.S. government purchase the debt from private investors and force the P.R.C. to arbitratio
Policing the Strait: How China’s Policing of the Taiwan Strait Violates the U.N. Convention on the Law of the Sea
Get PDFAs tensions continue to grow across the Taiwan Strait, China is using domestic maritime law to justify an expansion of police power in the international waters of the Taiwan Strait in violation of international law. This Comment will argue that the People’s Republic of China has violated the UN Convention on the Law of the Sea (“UNCLOS”) by implementing non-resource-related police power in waters meant only for resource exploration and management. In comparing the language of China’s domestic maritime law with that of UNCLOS, this Comment will show that the People’s Republic of China has used domestic law to reinterpret and obfuscate its obligations under UNCLOS. As a result, the freedom of navigation granted by UNCLOS to all States has been restricted by China’s policing. To prevent China from using its domestic law to assert increasing control over the Strait, the Tribunal of the Law of the Sea should issue an advisory opinion clarifying the purpose of Exclusive Economic Zones and denouncing China’s noncompliance with UNCLOS. Additionally, foreign States should continue to exercise freedom of navigation through the Taiwan Strait and push China to limit its police activity of the Strait
Businesses Beware: The Changing Face of Attorney-Fee Awards in U.S. Courts
Get PDFThe American Rule, creating a presumption against attorney-fee awards, is axiomatic in litigation in United States’ courts. Established by the very early U.S. Supreme Court case of Arcambel v. Wiseman in 1796, the rule rejected the British tradition of a “loser-pays” system, in which the losing party pays all parties’ attorney fees and litigation costs. While the Court’s reasoning for the rules creation is murky, later decisions have justified it on various grounds. Critics of the American Rule argue that the rule encourages the assertion of unmeritorious claims and defenses and fails to sufficiently encourage the settlement of those that are meritorious. The rationale notwithstanding, several long-established exceptions to the American Rule are generally accepted: attorney fees are generally awarded when allocated by contract or when expressly authorized by statute or common law.
In the last few decades, however, states and administrative agencies have made additional modifications to the American Rule, sometimes expanding its scope and other times limiting it. Several of these modifications are of particular note for businesses. This article examines the legacy and creation of the American Rule, as well as its established historical exceptions, and then examines and critiques recent innovations affecting the American Rule in modern litigation.
First, governmental agencies are empowering private litigants and attorneys to enforce regulations against businesses by using the lure of attorney fees to shift the legal costs to the private sector. Second, contractual provisions notwithstanding, states are limiting the scope of attorney-fee awards. Third, many courts have liberalized the award of “actual” attorney fees in lieu of requiring a showing of “reasonableness.”
The endless tinkering with the American Rule evidences a broad dissatisfaction with the rule itself, the policies it promotes and its capricious results. The questions asked about the rule should be welcome, but the recent deviations from the rule affecting businesses may result in imbalances that must be rectified
High-Frequency Traders: How the SEC Can Tighten Regulation While Maintaining the Benefits of a Competitive Market
Get PDFIn 2010, the so-called “Flash Crash” of the U.S. stock market brought the overlooked practice of high-frequency trading into the spotlight for the first time. Initial efforts to study and curtail the practice, including a transaction fee pilot attempted by the Securities and Exchange Commission in 2018, have been unsuccessful. After outlining the substantial benefits market participants gain from the activities of high-frequency traders, this article argues that there are three potent and readily available tools for limiting the harmful excesses of those traders: (i) aggressively bring market manipulation charges under § 9(a)(2) of the Exchange Act against those who attempt to manipulate the market; (ii) to bring enforcement actions under § 78f(b)(5) of the Exchange Act against national exchanges that fail to “protect investors and the public interest” by giving special benefits to those traders; and (iii) utilize § 19 of the Exchange Act to oversee exchange colocation rules designed to benefit those traders which do not reflect fair access and transparency. With these proposals implemented, markets will continue to function at historically low costs for all investors with the aid of healthy competition between high-frequency traders
Diversity and Inclusion Trainings as a Public Relations Imperative: Addressing the Faragher - Ellerth Test via Interest-Convergence and Targeted Universalism
Get PDFThis Article argues that courts must adopt a nuanced and culturally sensitive approach when addressing discrimination claims related to culturally and racially significant hairstyles. Specifically, it suggests incorporating immutable characteristics of racial and religious expression as a foundational standard in evaluating such cases. This approach aims to ensure equitable consideration in the adjudication of Title VII sexual harassment claims and Title VII racial discrimination claims
Queer: Litigating Gender Non-Conformity
Get PDFSection I of this article provides background information on the complexity of gender identity. This section addresses some of the different terminology used by members of the LGBTQ community to describe their gender identity, including the relatively well-known term “nonbinary” and continuing through to the less concrete term “queer.” Section II looks at the history of state action policing queer bodies and identities. It outlines statutes enacted to prevent individuals from hiding their identities and how such laws were used to target queer individuals. Section III discusses the case of Grimm v. Gloucester County School Boardand the two approaches taken by the Fourth Circuit in analyzing the claims advanced in that case. First, it discusses the court’s finding that transgender individuals constitute a quasi-suspect class subject to heightened scrutiny. Second, it explores the court’s reasoning in finding that the policy in Grimm constituted sex-based discrimination. Finally, it examines Adams v. School Board of St. Johns County, an Eleventh Circuit case, which came to the opposite conclusion, before concluding that Grimm, in fact, got it right. Section IV argues gender non-conformity is a class that should be afforded heightened scrutiny. First, it discusses why laws and policies targeting gender non-conforming individuals constitute sex-based discrimination. Then it applies the analysis from Grimm to argue that the same protection should be afforded to other gender non-conforming individuals
Discussant Commentary on the Twenty-Sixth Annual Grotius Lecture
Get PDFGrotius Lecturer Dame Meg Taylor and Distinguished Discussant Julian Aguon provided the Twenty-Sixth Annual Grotius Lecture on Wednesday, April 3, 2024 at 5:00 p.m
[interview] In on the Joke at the First-Ever Florida Man Games
No full textBut Ira P. Robbins, a law professor at American University, found in 2021 that other states had just as broad or broader access to public records than Florida. “Why don’t we have New Mexico Man or New York Man or Massachusetts Man?” he said in an interview
[quote] Squatters Have Become a Right-Wing Talking Point. What to Know About the Rare Practice
No full textBrandon Weiss, a professor of law at American University, said an unprecedented number of U.S. households cannot afford housing right now.
“Stories about the growing number of squatters is a sort of narrative, or rhetorical tool, being used to push back against tenants,” he said. “Narratives like this will shift the balance of power even further towards landlords.”
Weiss said there are campaigns to provide greater housing security, but if the story becomes that landlords are victims of tenants, it will deflect from the bigger problem of housing insecurity.
“Nobody is advocating wildly reckless lawbreaking, but if you take these caricatured cases to enact law reform, that can affect people in ways that the law probably didn’t intend,” he said