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Damages under CISG: Attorneys\u27 Fees and Other Losses in International Commercial Law
Get PDFThis Article examines judicial, arbitral, and scholarly interpretations of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) Article 74 and the recoverability of attorneys’ fees in CISG-governed contract disputes. The divergence in these interpretations and the locus of the resulting controversy is the Zapata decision of the U.S. Seventh Circuit Court of Appeals and the Court’s ruling that attorneys’ fees are not a recoverable loss under Article 74. Post-Zapata, mounting evidence exists of the lack of harmonization and uniformity on this interpretative issue. This Article analyzes the adjudicated outcomes of CISG-governed contract disputes in courts and arbitral tribunals throughout the world where attorneys\u27 fees were sought and reveals that almost all forums outside the U.S. award attorneys’ fees for litigation in CISG disputes. The debate is framed in the context of the significant disagreement among scholars as to the proper interpretation of Article 74’s loss provision as it relates to attorneys’ fees recovery. The disarray posed by discordant interpretations of this issue creates both practical and moral imperatives to adopt a consistent and coherent understanding of Article 74’s loss provision on the recoverability of attorneys’ fees. An excavation of the ethical and legal considerations underlying this interpretative issue demonstrates that the goals of harmonization as well as the CISG are best achieved by rejecting the Zapata rationale. Construing the loss provision of Article 74 to accord with its plain meaning does include attorneys’ fee recovery
Disaggregating Nationwide Injunctions
Get PDFNationwide injunctions have become a focus of heated judicial, academic, and even public debate. Much of this analysis treats nationwide injunctions as a unitary concept, referring to a particular type of court order. In fact, the term may apply to five different categories of orders of national applicability, each of which raises very different constitutional, fairness, rule-based, structural, prudential, and other concerns.
This Article presents a taxonomy of the five types of nationwide injunctions and the proper judicial treatment of each. Rather than focusing on the geographic applicability and scope of a court order, injunctions should instead be categorized based on the entities whose rights they seek to enforce and whether the case is a class action. Based on these considerations, the proposed taxonomy distinguishes among “nationwide plaintiff-oriented injunctions,” “nationwide plaintiff-class injunctions,” “nationwide associational injunctions,” “nationwide defendant-oriented injunctions,” and “nationwide private enforcement injunctions.”
After presenting this new framework for determining the validity of nationwide injunctions, this Article goes on to demonstrate that stare decisis, rather than nationwide defendant-oriented injunctions or even class certification under Federal Rule of Civil Procedure Rule 23(b)(2), is the most appropriate means of protecting the rights of third parties who are not personally involved in litigation. Affording district- or circuit-wide stare decisis effect to district court rulings allows members of the public to benefit from them and reduces the need for wasteful relitigation. At the same time, this approach recognizes the limited authority of lower court judges in our decentralized, hierarchical judiciary; mitigates the effects of extreme forum shopping; and ensures some degree of percolation of important constitutional issues
The Rise of the Extreme Right and the Crime of Terrorism: Ideology, Mobilization, and the Case of Golden Dawn
Get PDFThe past decade has witnessed the rise in popularity of organizations and political parties founded on the extreme nationalism and populism that characterized the interwar period\u27s fascist and Nazi parties. These organizations have become known as the alt-right and include white supremacists, neo-Nazis, neo-fascists, and other extreme right-wing fringe groups. Extreme right-wing political parties have also enjoyed electoral victories while promulgating xenophobia and hatred based on race, religion, ethnicity, nationality, and sexual orientation. This article examines the resurgence of such extreme right-wing political parties and the relationship between right-wing extremism, political parties, and terrorism. The goal of this article is to shift the discussion from one of political analysis of rightwing extremism to one of legal evaluation of the activities involved within the ambit of the recent advances in the criminalization of terrorism. Could the mobilization of extreme right-wing political parties be classified as terrorism? This article begins to answer this question by assessing the definitional problem of terrorism and critically analyzing the most recent legislative developments in the EU The article focuses on the uneasy relationship between the legal nature of political parties and the crime of terrorism. It then applies insights from this debate to the specific case of Greece\u27s popular extreme right-wing political party: Golden Dawn. It discusses Golden Dawn\u27s development and political mobilization under the framework of terrorist statutes and argues in favor of a constitutional interpretation that gives political parties the necessary legal personality in order to incur collective criminal liability for such activities
FSU Law Focus - 09/20/2019
Get PDFFrom the Dean: 2019 Homecoming Weekend; FSU Admissions Blog Serves As Resource for Prospective Students; Alum Profile: Arielle H. Demby Berger (’06); Student Profile: 3L Hana Bilickihttps://ir.law.fsu.edu/fsu-law-focus/1112/thumbnail.jp
FSU Law Focus - 03/08/2019
Get PDFFrom the Dean: Moot Court National Championship (2019 William B. Bryant-Luke C. Moore Civil Rights Moot Court Competition); Professor Laroche & 2L Daniela Donoso Address Gender Issues on National Level; Alum Profile: Noah D. Valenstein (’08); Student Profile: 3L Joshua L. “Lance” Hitthttps://ir.law.fsu.edu/fsu-law-focus/1338/thumbnail.jp
The Shadow of Kiobel and Jesner: An Examination of the Alien Tort Statute and Bringing It Back into the Light
Get PDFThe Alien Tort Statute ( ATS ) was enacted in 1789 and for roughly two centuries seemed fated to go down as a curious historical footnote. Invoked only a handful of times over the ensuing two hundred years, the ATS had new life breathed into it in 1980 with the Second Circuit case of Filartiga v. Pena-Irala. The ATS subsequently became a vehicle for victims of human rights violations seeking redress in U.S. courts. But while Filartiga represented a small window of opportunity opening for human rights activists, this utility would prove short-lived as the Supreme Court quickly began to curtail the applicability of the ATS: first putting its hand on the window sill with the case of Sosa v. Alvarez-Machain, then slamming it closed in Kiobel v. Royal Dutch Petroleum Co., and finally bolting the lock and throwing away the key recently in Jesner v. Arab Bank, PLC. This constant chipping away at the ATS has sharply limited the circumstances in which it can be invoked, rendering it virtually toothless. This Note argues that the Court\u27s interpretations of the ATSpost-Sosa is both flawed and at odds with its underlying intent. It will contrast the workable standard laid out by the Sosa Court with the subsequent brittle constructions of the Kiobel and Jesner Courts. This Note posits that the standard imposed by the Court in Sosa is best interpreted using Justice Breyer\u27s concurrence from Kiobel and Justice Sotomayor\u27s dissent in Jesner and calls for the adoption of a synthesis of these as the best interpretation of the ATS going forward. Specifically, this hybrid test interprets the first prong of Sosa through Justice Sotomayor\u27s Jesner dissent and relies on customary international law to inform courts as to what recognized norms are. It interprets the second prong of Sosa through Justice Breyer\u27s Kiobel concurrence and allows courts to use their discretion in determining whether enforcement of these norms is appropriate, viz, does it concern distinct American interests. This Note will show that this hybrid test is an appropriatelyc onstrainedi nterpretationo f the ATS based on its text, history, and intent, and will also apply this hybrid test to two recent cases to demonstrate its viability and applicability in practice
A Rational Approach to the Role of Publicity and Condemnation in the Sentencing of Offenders
Get PDFThe punishment imposed on criminal offenders by courts often does not exhaust the hardship they experience. There are a number of collateral forms of punishment that many offenders are subjected to as a result of their offense(s). Some of these deprivations are institutional, such as being dismissed from employment or being disqualified to vote. Other hardships are less predictable and harder to quantify. Public scorn-often directed towards high profile offenders, such as O.J. Simpson and Anthony Weiner-can be the cause of considerable, additional suffering to offenders. It can engender feelings of shame, embarrassment, and humiliation. At the same time, the high-profile nature of the cases provides courts with an opportunity to demonstrate to the wider community the consequences of violating the law. There is no established jurisprudence regarding the role that public criticism of offenders should have in sentencing decisions. Some courts take the view that it should increase the penalty imposed on high-profile offenders to deter others from committing similar offences. By contrast, it has also been held that public condemnation should reduce penalties because the offender has already suffered because of the public condemnation. On other occasions, courts have held that public condemnation is irrelevant to sentencing. The issue is increasingly important because the Internet and social media have massively increased the amount of publicity that many criminal offenders receive. Simultaneously, this is an under-researched area of the law. This Article develops a coherent jurisprudential and evidence- based solution to the manner in which public opprobrium should be dealt with in sentencing decisions. Arguably, sentencing courts should neither increase nor decrease penalties in circumstances where cases have attracted wide-ranging media attention. The hardship stemming from public condemnation is impossible to quantify and, in fact, causes no tangible suffering to some offenders. Thus, the extent of publicity that an offender receives for committing a crime should be an irrelevant consideration with respect to the choice of punishment. In proposing this reform, this Article carefully analyzes the jurisprudence in the United States. It also considers the position in Australia, where the issue has been contemplated at some length