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sexta-feira, 23 de dezembro de 2016

Call for Papers: International Law in a Dark Time

The Erik Castrén Institute of International Law and Human Rights and Peking University Institute of International Law Collaboration Project (ECI-PUIIL Project) has issued a call for papers for a seminar for doctoral students and junior researchers on "International Law in a Dark Time," to be held May 22-23, 2017, in Helsinki. Here's the call:

“INTERNATIONAL LAW IN A DARK TIME”

Seminar for Doctoral Students and Junior Researchers
“INTERNATIONAL LAW IN A DARK TIME”

Seminar directors: Prof. Anne Orford (University of Melbourne) and Prof. Martti Koskenniemi (University of Helsinki)
Helsinki 22-23 May 2017

The Erik Castrén Institute of International Law and Human Rights and Peking University Institute of International Law Collaboration Project (ECI-PUIIL Project) funded by CIMO is pleased to offer a seminar for PhD students and junior researchers to be held at Faculty of Law, University of Helsinki. The purpose of this workshop is to examine the transformations of law at a specific moment in history in which law and lawfulness appear as much part of the problem as the solution.

The seminar is open to PhD students and young researchers, internationally, with a specific interest in the theme “International Law in a Dark Time”.

Theme of the Seminar
The call for papers is on four themes:
1) Human Rights in a Dark Time
2) Environmental Law in a Dark Time
3) The Laws of Security in a Dark Time
4) The Laws of the International Economy in a Dark Time.

The background for this workshop – and the call for papers – is formed by the experience that in the past 25 years optimism about international progress after the end of the Cold War has diminished and law’s role in global governance has come to appear increasingly ambivalent: it has often proven either useless or actually harmful. From an easy acceptance of the ideology of the “rule of law” in the early 1990s, we have come to realise that law comes in many forms and supports very different and often contradictory policies. On the one hand, there has been a massive growth of law in various specialist fields ranging from human rights to the environment, war and security to the economy. At the same time, in many of these fields a sense of a “crisis” has emerged or persists. Sometimes the crisis has been attributed to external phenomena – and law has come to seem inefficient in dealing with them. At other times crisis may seem have been created or exacerbated by the law itself. Despite the “growth” of law in the field of human rights and the environment, huge numbers of people experience daily deprivation and no end can be seen to the degradation of the quality of the environment. Laws enacted to protect the security of human groups are used to discipline and oppress, and economic laws seem powerful to forestall the massive growth of global inequality. In a word, the benefits of the traditional recipe to international problems of “more law” may no longer seem sustainable. The purpose of the workshop would be to examine law’s increasingly complex role and its often problematic consequences for international politics.

Format of the seminar
Each participant will deliver a paper and present it during the seminar. The papers shall be submitted before 30 April, and will be made available to all other participants. The seminar will be two days in total, and will not have parallel sessions.

Submission of Abstracts and Evaluation Process
An abstract (no more than 500 words) shall be submitted before 30 December. Please include full name, junior researcher/doctoral student/independent researcher, institutions/university, in the abstract. Accepted abstracts will be informed by 18 January.
All abstracts shall be sent to intlaw-institute@helsinki.fi with the title “International Law in a Dark Time + Name”.

Important Dates
30 Dec 2016: deadline for submission of abstracts by email.
18 Jan 2017: abstract evaluation and selection of papers
30 April: submission of full papers

Participation Fee
There is no participation fee. The participants are expected to cover their own travel and other expenses.

Scholarships
A limited number of scholarships are available for Chinese participants under the ECI-PUIIL Project. Applicants should be a doctoral candidate or a junior faculty member working at a Chinese university. A formal application (including a CV, an abstract, and a short statement) should be sent to intlaw-institute@helsinki.fi and concurrently to puiil@pku.edu.cn before 30 December. Decisions regarding the funding will be announced by 18 January.

Further Details
Information about transportation and accommodation will be sent to accepted participants in January 2017.

Posted by Jacob Katz Cogan.

quinta-feira, 8 de dezembro de 2016

The Use (and Misuse) of European Human Rights Law in Investor-State Dispute Settlement

José E. Alvarez
New York University School of Law

November 23, 2016

Chapter in Franco Ferrari (ed.), The Impact of EU Law on International Commercial Arbitration (Juris, Forthcoming) 

Abstract:

For some time, critics of investor-state dispute settlement (ISDS) have urged its arbitrators and litigants (particularly respondent states) to draw from other sources of international law, particularly human rights law, to promote interpretations of international investment agreements (IIAs) that cohere with other international legal regimes, including human rights values. Some have hoped that the use of human rights law would not only lessen the fragmentation of international law encouraged by self-regarding mechanisms such as ISDS but would also promote the "re-balancing" of IIAs to permit greater scope for sovereigns to regulate. This essay examines the ways European human rights law has been cited in publicly available investor-state awards. It finds considerable reliance on such citations in the largest known database of such awards. But close examination of such citations, including in the recent Philip Morris v. Uruguay case dealing with tobacco regulation, casts doubt on whether this reliance is likely to produce the results that some anticipate. Investor-claimants are as likely to cite to European human rights law as are respondent states. It is not at all clear from the results to date that recourse to human rights has either 'humanized' international investment law or made it more coherent.

Number of Pages in PDF File: 102

Disponível em: <https://ssrn.com/abstract=2875089>. Acesso em 05 dez. 2016.

terça-feira, 6 de dezembro de 2016

The International Court of Justice and the Judicial Politics of Identifying Customary International Law

University of Muenster – Faculty of Law; Max Planck Institute for Research on Collective Goods

November 1, 2016

Forthcoming in European Journal of International Law, Vol. 28 (2017) 

Abstract: 

It is often observed in the literature on customary international law that the identification practice of the International Court of Justice for customary norms deviates from the traditional definition of customary law in Art. 38 (1) lit. b of the ICJ Statute. However, while there are many normative and descriptive accounts on customary law and the Court’s practice, few studies try to explain the jurisprudence of the ICJ. This study aims at closing this gap. I argue that the ICJ’s argumentation pattern is due to the institutional constraints that the Court faces. In order for its decisions to be accepted, it has to signal impartiality through its reasoning. However, the analysis of state practice necessarily entails the selection of particular instances of practice, which could tarnish the image of an impartial court. In contrast, if the Court resorts to the consent of the parties or widely accepted international documents, it signals impartiality.

Number of Pages in PDF File: 31

Disponível em: <https://ssrn.com/abstract=2876543>. Acesso em: 05 dez. 2016.

sexta-feira, 18 de novembro de 2016

Migration Emergencies

Temple University - James E. Beasley School of Law

November 14, 2016


Abstract:

Migration emergencies are a commonplace feature in contemporary headlines. Pundits offer a variety of causes provoking these emergencies. Some highlight the deadly risks of these journeys for the migrants. Many more express alarm at the potential threats these mass influxes pose to their destination countries. But few question whether these migrant flows are, as commonly portrayed, unexpected and unpredictable. This paper asks whether these migration emergencies are surprising events or the logical and foreseeable outcomes of the structural failures of the global migration system. In particular, it interrogates the architecture of international migration law, arguing that the current framework is unsustainable in today’s globalized world.

This is a story about the legal construction of crisis. Several literatures offer compelling insights into the construction of migration crises, but fail to explore the crucial role of international migration law. Scholars of forced migration view the legal framework as an inadequate response to crises but not as a root cause. Others have highlighted the role that crises play in the development of international law, demonstrating how crises impact law, but failing to examine how law helps to construct those crises.

This article begins to unpack the role of international migration law in constructing migration “crises”. International migration law, because it is codified in written instruments and nearly impossible to alter, entrenches sociocultural frames that might otherwise be substantially more flexible. International law has constructed a deeply path-dependent approach to international migration that not only obscures systemic inequality but also consumes alternate conceptions of morality. In response to this critique, the article suggests a new approach to global migration law that aims to govern migrant flows more effectively. In short, it aims to establish international migration law as a separate subfield of international law rather than the afterthought that it currently represents.

Number of Pages in PDF File: 42

Disponível em: <https://ssrn.com/abstract=2869230>. Aesso em: 18 nov. 2016.

segunda-feira, 22 de agosto de 2016

The Refinement of International Law: From Fragmentation to Regime Interaction and Politicization

Max Planck Institute for Comparative Public Law and International Law

August 15, 2016


Abstract:
The new posture of international courts and tribunals is the ‘spirit of systemic harmonisation’, to use the words of the European Court of Human Rights Grand Chamber in Al Dulimi. Fifteen years after then ICJ President’s Gilbert Guillaume’s ‘proliferation’-speech before the UN General Assembly and ten years after publication of the ILC ‘fragmentation’-report, it is time to bury the f-word. Along that line, this paper concentrates on the positive contribution of the new techniques which courts, tribunals and other actors have developed in order to coordinate the various subfields of international law. If these are accompanied by a proper politicization of international law and governance, they are apt to strengthen both the effectiveness and the legitimacy of international law. Ironically, the ongoing ‘harmonisation’ and ‘integration’ within international law could also be conceptualised as a form of procedural constitutionalisation.

Number of Pages in PDF File: 29

Disponível em: <http://ssrn.com/abstract=2823512>. Acesso em 19 ago. 2016.

segunda-feira, 25 de julho de 2016

Authority and Dialogue: State and Official Immunity in Domestic and International Courts

Chimène I. Keitner 
University of California Hastings College of the Law

July 14, 2016

CONCEPTS OF INTERNATIONAL LAW IN EUROPE AND THE UNITED STATES (Chiara Giorgetti & Guglielmo Verdirame, eds., Cambridge Univ. Press, Forthcoming) 

Abstract:    
This chapter considers aspects of the ongoing conversation about norms of state and official immunity among domestic and international courts. Because immunity norms transect the international and domestic legal spheres, adjudicating immunity claims creates opportunities for dialogue between international and domestic courts about the content of immunity norms, and about which institutions (both domestic and international) have the authority to articulate and apply them.

Part I begins by discussing two challenges brought before international tribunals to the application of foreign state immunity by domestic courts: a challenge brought before the European Court of Human Rights (ECtHR) to the United Kingdom’s determination that Saudi Arabia was entitled to jurisdictional immunity from civil claims for torture (Jones v. United Kingdom), and a challenge brought before the International Court of Justice (ICJ) to Italy’s determination that Germany was not entitled to jurisdictional immunity from civil claims for war crimes (Germany v. Italy). Both of these cases pitted the right of access to a judicial remedy against the norm of state immunity.

Part II examines two domestic cases that followed these international decisions. It discusses the Canadian Supreme Court’s decision in Estate of Kazemi v. Iran, which illustrates normative coalescence around a conception of immunity based on a domestic statute and reinforced by international jurisprudence. It then explores the Italian Constitutional Court’s Judgment 238/2014, which illustrates that international decisions can also provoke “legal protectionism” — the attempt to shield domestic norms and institutions from foreign or international “imports.”

Part III concludes by exploring how arguments based on the supremacy of domestic constitutional law have been used in other cases to justify non-compliance with the decisions of international bodies, even when the constitution explicitly incorporates international law into the domestic legal system. At a minimum, by conceptualizing various legal and political institutions as active interlocutors engaged in a collective process of norm articulation, we can perhaps worry somewhat less about who gets the “final word,” and focus instead on the doctrinal and normative implications of this ongoing conversation for the dignity and well-being of affected groups and individuals.

Number of Pages in PDF File: 19

Disponível em: <http://ssrn.com/abstract=2809829>. Acesso em: 23 jul. 2016.

quarta-feira, 13 de julho de 2016

Journal of Private International Law Conference 2017

by THALIA KRUGER on JULY 9, 2016

The next Journal of Private International Law Conference will take place in Rio de Janeiro, Brazil from 3-5 August 2017. We are now issuing a call for papers on any aspect of private international law. Abstracts of a maximum of 500 words should be sent to jprivintlrioconference2017@gmail.com by 15 November 2016. The previous conferences at Aberdeen, Birmingham, New York, Milan, Madrid and Cambridge have been extremely successful. The conference is the leading opportunity for private international law academics of all levels of seniority from around the world to gather together to advance our subject.

Speakers will not have to pay a registration fee for the conference but will be expected to fund their own travel expenses and accommodation costs. In addition, speakers will be expected to submit the finalised version of their articles for consideration for publication in the Journal of Private International Law in the first instance.


segunda-feira, 11 de julho de 2016

Contestation and Deference in the Inter-American Human Rights System

Jorge Contesse
Rutgers Law School

April 1, 2016

Law & Contemporary Problems, Vol. 79(2), 2016 

Abstract:


This Article discusses the inter-American human rights system’s adjudication model in light of some of the conjectures on subsidiarity as a principle for international governance — that is, the degree of deference it grants to the assessment of a situation by the member state concerned. I inquire about the system’s role as arbitrator of human rights cases within its jurisdiction, examining the dynamics of subsidiarity within the system’s changing context. I find that the Inter-American Court of Human Rights tends to employ a maximalist model of adjudication. Such a model leaves little room for states to reach their own decisions and can be explained as largely resting upon the political context where the Court came to exist, almost four decades ago. I argue that there is a challenge ahead for the Court, namely, to reconcile both claims: on the one hand, states’ demands for higher deference, and on the other hand, the importance of an independent and legitimate regional human rights tribunal.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2799476>. Acesso em: 07 jul. 2016.

sexta-feira, 8 de julho de 2016

Ghent Rolin-Jaequemyns International Law Institute

GET INVOLVED

STUDENT PARTICIPATION IN GRILI CONFERENCES, LECTURES AND RESEARCH MEETINGS

Students are warmly invited to participate in the public events organized by the Institute. An overview of these (past and upcoming) events can be found elsewhere on this website (seeEvents). In addition, highly-motivated students with a keen interest in international law may be allowed on an ad hoc basis to participate in closed seminars organized by the Institute (such as the doctoral seminars forming part of the International Order & Justice Specialist Course - academic year 2015-16) or in the periodic research meetings of the Ghent Rolin-Jaequemyns International Law Institute. The latter meetings are organized approximately once every two months. During these meetings, one or more GRILI researchers will bring a short presentation on a recent or forthcoming publication, on new case-law or evolutions in state practice, or on other aspects of ongoing research. Students interested in participating in these research meetings or in other closed events should submit a request to this end with the GRILI contact persons.

GRILI WANTS YOU

The Institute exceptionally accepts hihgly motivated and outstanding students as 'student-assistants' for a limited period of time, to assist faculty members in their day-to-day activities. Assignments might include: updating course curricula, editorial work, preparation for conferences, etc. The position is remunerated according to University salary scales. Students that qualify for this program will be informed by the dean's office. In addition, master students that are interested in providing research assistance may signal their interest with relevant faculty members of the Institute. Depending on the available funds, they may temporarily be hired as paid job students or may instead act as voluntary collaborators under the supervision of faculty members of the Institute.

LLM

Students that wish to pursue postgraduate studies may opt for one of the manifold general or more specialized LLM programmes offered by academic institutions within or without Europe. Ghent law school itself organizes an exciting LLM programme with a wide range of specialized modules (students can opt for an LLM in International and European law, an LLM in International Business Law or an LLM in European Union law) and co-organizes an MSc-programme in Maritime Science. Ghent students that wish to obtain advice on pursuing an LLM abroad can reach out to GRILI faculty members with relevant expertise. Ghent alumni that pursue an LLM elsewhere are invited to signal this to the GRILI so that we can exchange information with future candidates.

PHD IN INTERNATIONAL LAW?

Do you have a strong interest in human rights law, international criminal law, international environmental law, or other international law themes, as well as a keen appetite for academic research? In that case, pursuing a doctoral degree may be just something for you. Information on the PhD program can be found here and here. In essence, interested candidates can be hired to work on a pre-determined research project, whereby the PhD supervisor has set the general scope of the project and obtained proper funding. Vacancies for such projects may be communicated where appropriate, together with other possible job openings for assistants on the GRILI homepage or on the faculty's dedicated vacancies page. Alternatively, interested candidates can draft a PhD proposal of their own, contact a GRILI faculty member with relevant expertise to discuss the proposal and to act as supervisor, and apply for funding at their own initiative. For Belgian students, the main ooptions concern the (highly competitive!) PhD scholarships for FWO aspiranten (in the past, the deadline for submission was usually set at 1 February of the preceding year; results are communicated late June) or for BOF researchers (2015 deadline was 7 May).

VISITING GRILI


Doctoral or post-doctoral researchers working with another institution that are interested in spending a research stay with the Institute are invited to signal their interest with a GRILI faculty member with relevant expertise. Each year, GRILI accepts a small number of visiting researchers. Preference will be given to strong/promising candidates whose research interests correspond to the research focus of the GRILI members. Visiting researchers will in principle be provided with desk space within the faculty building and will have full access to the library collection. A limited bench fee may apply.
Disponível em: <http://www.grili.ugent.be/for-students/get-involved>. Acesso em: 06 jul. 2016.

quarta-feira, 6 de julho de 2016

Enduring Originalism

Notre Dame Law School

University of Richmond - School of Law

June 10, 2016


Abstract:
Why should anyone be a constitutional originalist today? Why won’t originalism go away? These questions are related and important, and this Article tackles them head-on.
If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers’ law, and any other further lawful changes, as our law today. If we do not, then originalism is not the law and perhaps should be abandoned in favor of what is.
The positive turn points in the right direction but, we argue, does not go far enough. To be sound and complete, a positive-law argument for constitutional originalism must also have firm conceptual and normative grounds. Without conceptual and normative anchors, positive-law originalism is subject to drift in a jurisprudential sea in which “whatever is, is law.” An appropriately anchored theory depends on a defensible concept of the Constitution as positive law to justify a normative conclusion about how faithful participants in our legal system ought to interpret it in developing constitutional law. This Article explains how the classical natural law tradition of legal thought — which is also the framers’ tradition — supplies a solid jurisprudential foundation for constitutional originalism in our law today.

Number of Pages in PDF File: 49


Disponível em: <http://ssrn.com/abstract=2793875>. Acesso em: 04 jul. 2016.

segunda-feira, 6 de junho de 2016

Hermenêutica Jurídica - uso e abuso de princípios - o juiz Iolau

1) Cite e explique duas críticas direcionadas ao abuso na utilização de princípios.
Ver página 176 e seg, página 182 e seg.

2) Em que consiste o problema da superadequação, característica do principialismo dominante no Brasil?
Ver página 189 e seg.

3) A compulsão ponderadora ameaça o Estado de direito e a democracia?
Ver página 194 e seg.

4) Quando é justificável e como deve ser realizada a inserção de valores na argumentação constitucional?
Ver página 214 e seg.

5) Caracterize o juiz Iolau, o juiz Hidra e o juiz Hércules.
Ver página 221 e seg.

6) O que é o paradoxo da justiça? Como ele pode ser enfrentado?
Ver página 226 e seg.

REFERÊNCIA

NEVES, Marcelo. Entre Hidra e Hércules: princípios e regras constitucionais. São Paulo: Martins Fontes, 2013. 270 p.

Hermenêutica Jurídica - outro modelo para distinção entre princípios e regras

1) "Ao se interpretarem as disposições constitucionais [...] são-lhes atribuídas uma ou mais normas, sejam elas regras ou princípios" (NEVES, 2013, p. 89-90). Tais normas podem ser atribuídas diretamente ou indiretamente ao texto constitucional. Nesse contexto, responda:
a) qual a diferença entre norma atribuída diretamente e norma atribuída indiretamente à constituição?
b) a tradicional presunção de coerência interna da ordem jurídica tem lugar na proposta hermenêutica de Marcelo Neves?

2) Quando a distinção entre princípios e regras adquire significado prático? Justifique.
Ver página 95 e seg.

3) Considerados como tipos ideais, qual o papel de princípios e regras na cadeia argumentativa?
Ver página 101 e seg.

4) De que forma a positivação do direito contribuiu para o surgimento da problemática de sua fundamentação?
Ver página 112 e seg.

5) O que significa "hierarquia entrelaçada" no plano da concretização normativa?
Ver página 117 e seg.

6) "Pode-se dizer que a argumentação orientada primariamente pelas regras constitucionais é uma argumentação formal, mediante a qual o sistema jurídico pratica a autorreferência, sendo-lhe fundamental 'a necessidade de se chegar a uma decisão e de evitar um mergulho em toda a complexidade dos dados de fato do mundo [...]'. Já a argumentação orientada primariamente por princípios constitucionais pode ser vista como uma argumentação substancial, na qual o sistema pratica heterorreferência, evitando isolar-se mediante a argumentação formal" (NEVES, 2013, p. 132). Nesse contexto:
a) qual a importância dos princípios constitucionais?
b) qual o risco decorrente do fascínio pelos princípios?

7) Em que consiste a dupla contingência característica do processo de concretização constitucional?
Ver página 136 e seg, página 143 e seg, página 153 e seg.

8) Qual a diferença entre otimização mediante ponderação de princípios e limitação de expansão de esferas da sociedade?
Ver página 146 e seg.

9) Diferencie ponderação otimizante e ponderação comparativa.
Ver página 151 e seg.

10) A noção de dissenso estrutural é aplicável à tensão entre direito constitucional e direitos humanos?
Ver página 154 e seg.

11) "O desafio decisivo que se apresenta ao órgão de interpretação-aplicação constitucional nos casos de colisão intraprincípios, da mesma maneira do que na colisão interprincípios, é de como reorientar as expectativas normativas dos envolvidos direta e indiretamente na respectiva controvérsia" (NEVES, 2013, p. 169). Considerando a importância da reorientação de expectativas, indique três características de uma boa decisão judicial e explique-as.


REFERÊNCIA
NEVES, Marcelo. Entre Hidra e Hércules: princípios e regras constitucionais. São Paulo: Martins Fontes, 2013. 270 p.

Hermenêutica Jurídica - os modelos dominantes de Dworkin e Alexy

1) Como Marcelo Neves caracteriza a teoria da justiça de Rawls?
2) A teoria da justiça de Rawls contribuiu para a crítica da tese positivista da separação entre direito e moral? Justifique.
Ver página 44 e seg.

3) "Habermas [sustenta] que o princípio da positivação é indissociável do princípio da fundamentação. Além da positividade, do legalismo e da formalidade como três características do direito moderno, aponta-lhe a generalidade ou universalidade, que envolve a necessidade de justificação nos quadros de uma moral pós-convencional, fundada em princípios universais. [...] A legitimação procedimental implica, então, a criticabilidade dos princípios jurídicos à luz de uma racionalidade discursiva abrangente, envolvendo questões jurídicas (de consistência), pragmáticas (de estabelecimento de fins e determinação dos meios adequados a alcançá-los), ético-políticas (de valores) e morais (de justiça), assim como questões concernentes ao compromisso equitativo" (NEVES, 2013, p. 49-50).
Das questões mencionadas na citação, quais são relativas ao direito em sua lógica interna e quais representam uma abertura para a consideração de fatores meta-jurídicos? Justifique.

4) A teoria e Dworkin é um modelo jusnaturalista? Justifique.
Ver página 54 e seg.

5) Em que consiste a concepção de justiça enquanto fórmula de contingência?
Ver página 58 e seg, página 221 e seg.

6) Em que consiste o "dissenso estrutural" presente em uma sociedade complexa?
Ver página 60 e seg.

7) Explique as três dimensões da máxima da proporcionalidade.
Ver página 65 e seg, página 81 e seg.

8) "Princípios são sempre razões prima facie e regras são, se não houver o estabelecimento de alguma exceção, razões definitivas" (ALEXY apud NEVES, 2013, p. 68).
Qual a consequência, para a construção da decisão judicial, dessa distinção entre princípios e regras?
Ver página 84 e seg.

REFERÊNCIA
NEVES, Marcelo. Entre Hidra e Hércules: princípios e regras constitucionais. São Paulo: Martins Fontes, 2013. 270 p.

quinta-feira, 2 de junho de 2016

Hermenêutica Jurídica - autofundamentação constitucional do direito

"Só quando o direito passa a ser posto basicamente por decisões, ou seja, com a sua positivação na sociedade moderna, ele se torna permanentemente alterável. À decidibilidade e à mutabilidade do direito associa-se o problema de sua diferenciação funcional e autonomia na sociedade moderna. Diferenciado o direito da moral, superado, institucionalmente, o seu apoio nas noções jusnaturalistas, surge a questão de sua fundamentação como sistema operativamente autônomo." (NEVES, 2013, p. 113-114).

Considerando a passagem, em que consiste a autofundamentação constitucional do direito?

Referência:
NEVES, Marcelo. Entre Hidra e Hércules: princípios e regras constitucionais. São Paulo: Martins Fontes, 2013. 270 p.

sábado, 30 de abril de 2016

DIREITO INTERNACIONAL PRIVADO - 2016.1 - ATIVIDADE

Universidade Estadual do Maranhão - UEMA
Curso de Direito
Direito Internacional Privado - 2016.1

Caros alunos, no intuito de aferir sua participação e construir a nossa segunda avaliação, peço a vocês que se dividam em  5 equipes. Cada equipe deve procurar as três decisões mais recentes envolvendo os incisos dos artigos 88 e 89 do  Código de Processo Civil de 1973 e identificar mudanças no modo de decidir consideradas as disposições do atual CPC.

Obs. Não se contentem com as ementas, leiam os votos.

Orientações:
a) Identifiquem os membros da equipe no início do comentário;
b) Escrevam de 200 a 500 palavras;
c) Identifiquem as referências utilizadas;
e) Enviem até 8 de maio.

Respondam como comentários à essa postagem.

A página de pesquisa é essa: <http://www.stj.jus.br/SCON/>.



HERMENÊUTICA JURÍDICA - 2016.1 - ATIVIDADE

Universidade Estadual do Maranhão - UEMA
Curso de Direito
Hermenêutica Jurídica - 2016.1

Caros alunos, no intuito de aferir sua participação e construir a nossa segunda avaliação, peço a vocês que se dividam em equipes de 4 a 6 integrantes e que cada uma delas realize a seguinte tarefa:

Levando em conta:
- a identificação construída por Larry Alexander entre originalismo e positivismo;
- as observações de Dworking e sua concepção de direito como integridade;
- a noção de construção do direito e teleologia apresentadas por Carlos Maximiliano há quase 100 anos.

Distinga e posicione-se quanto à admissibilidade e quanto ao mérito da denúncia apresentada junto à Comissão de Ética da Câmara dos Deputados contra o Deputado Jair Bolsonaro pela prática de apologia à tortura.

Orientações:
a) Identifiquem os membros da equipe no início do comentário;
b) Escrevam de 200 a 500 palavras;
c) Identifiquem as referências utilizadas na construção de seu parecer;
e) Enviem até 8 de maio.

Respondam como comentários à essa postagem.



DIREITO INTERNACIONAL PÚBLICO 2016.1 - ATIVIDADE

Universidade Estadual do Maranhão - UEMA
Curso de Direito
Direito Internacional Público - 2016.1

Caros alunos, no intuito de aferir sua participação e construir a nossa segunda avaliação, peço a vocês que se dividam em 5 equipes e que cada uma delas realize a seguinte tarefa:

Levando em conta:
- a distinção entre reconhecimento de Estado e reconhecimento de governo;
- os diferentes postulados das doutrinas Tobar e Estrada;
- o desenvolvimento das cláusulas democráticas no direito internacional, especialmente na América;

Posicione-se quanto a aplicabilidade do instituto do reconhecimento de governo em seus aspectos formal e material na hipótese de aprovação do afastamento por até seis meses da atual governante do Brasil.

Orientações:
a) Identifiquem os membros da equipe no início do comentário;
b) Escrevam de 200 a 500 palavras;
c) Identifiquem as referências utilizadas na construção de seu parecer;
e) Enviem até 8 de maio.

quarta-feira, 27 de abril de 2016

Desenvolvimento do direito internacional na concepção de Cornelius van Bynkershoek



Paulo Borba Casella

Revista da Faculdade de Direito da Universidade de São Paulo

Resumo
Cornelius van Bynkershoek (1673-1743) se inscreve como marco no desenvolvimento do Direito Internacional, dentre os autores mais relevantes, do século XVIII. Este internacionalista foi importante pelo foco pragmático dado à prática dos estados, como elemento determinante da formação e da consolidação de normas internacionais, mas curiosamente muito menos freqüentemente citado que outros internacionalistas. Este artigo analisa a especificidade e a atualidade da contribuição de Bynkershoek e aponta o seu lugar, ao lado de Grócio, e dos precursores da disciplina.

Disponível em: <http://www.revistas.usp.br/rfdusp/article/view/67819>. Acesso em: 26 abr. 2016.


quarta-feira, 20 de abril de 2016

Interpretive Divergence

Neha Jain
University of Minnesota - Twin Cities - School of Law

February 27, 2016

Virginia Journal of International Law, Forthcoming

Abstract:
Should principles of legal interpretation differ according to the nature or purpose of a legal instrument? In the domestic context, most discussions of interpretation proceed on the assumption that for each type of legal instrument – such as constitutions, statutes, contracts, and wills – there is a different set of interpretive rules, standards, and canons. In international law, interpretive principles for its most high-profile legal instrument, the international treaty, conventionally advocate a uniform approach to construction: regardless of the form, character, and subject matter of the treaty, interpretation should be treaty-blind. This Article challenges this long-standing view and argues that in light of the complex and multi-faceted character of the modern treaty, international courts and scholars should embrace a divergent approach to treaty interpretation. The Article illustrates the pitfalls of the stubborn adherence to and invocation of the uniform approach through an analysis of its application by international criminal courts. International criminal law treaties such as the Rome Statute of the International Criminal Court are hybrid entities that are simultaneously a criminal code, a compact between states committed to anti-impunity, and a human rights instrument. Drawing on the domestic analogy, the Article posits that with the fragmentation of international law and the proliferation in specialized treaty regimes, each with their own adjudicative institutions, the treaty is best conceived as a short-hand legal device for instruments that can be as varied as contracts, constitutions, and statutes. Going even further, the constituent parts of a single treaty may perform vastly different functions and cement different kinds of legal relationships between multiple entities. The uniform approach to interpretation fails to do justice to this varied character of treaty devices. The Article highlights the promise of a divergent approach to treaty interpretation by exposing the real world consequences of adopting different interpretive methodologies for the constituent parts of modern treaties such as the Rome Statute. It distinguishes between the statutory, contractual, human rights oriented, and institutional provisions of the Rome Statute and demonstrates the results that follow from the application of a richer interpretive framework to the construction of the modern international treaty.

Number of Pages in PDF File: 51

Disponível em: <http://ssrn.com/abstract=2755790>. Acesso em 16 abr. 2016.

segunda-feira, 18 de abril de 2016

Report on ERA conference on Recent case law of the ECtHRs in Family law matters

by Thalia Kruger on April 5, 2016

Guest post by Asma Alouane, PhD candidate at Panthéon-Assas (Paris II) University on Private international law to the test of the right to respect for private and family life.
On February 11 and 12 2016, the Academy of European law (ERA) hosted in Strasburg a conference on Recent Case law of the European Court of Human Rights in Family law matters. The Court’s evolutive interpretation of the notion of family life combined with its controversial understanding has created a long series of new challenges in the field of Family law. The conference participants discussed these issues, as well as the difficulties that States may face in complying with their obligations under the Convention.
The purpose of this post is to give a succinct overview of the presentations, which were of interest from a conflicts-of-law perspective.

Evgueni Boev, Setting the scene: Private and family life under the Convention
Setting the scene of the conference, Evgueni Boev’s presentation provided an answer to the question of What is a family according to Court Cases? Whereas the term family is mentioned in several provisions (art 8, art 12, art 5 of Protocol 7…), most of the cases are examined under the concept of family life of art 8. Article 12 and Protocol 7’s article 5 appear as the lex specialis regarding marriage and equality within a married couple. Thus, article 8 is the pillar of the case law of the Court regarding family matters.
From the broad perspective of the ECtHR cases, Boev demonstrated that the concept has expanded in two different directions: in a horizontal way between partners and in a vertical way between parent and child. In both directions, only the substantive reality matters. For instance, in the relationship between partners, family life exists regardless of whether there is legal recognition of the situation (e.g. Abdulaziz, Cabales and Balkandali v. the United Kingdom). The extension of the concept of family life to same-sex de facto couples in the Schalk and Kopf v. Austria case is another illustration of the broad scope of the family life. In the other direction, between parent and child, what matters most is not the biological link and in these cases too the Court emphasises the substantive relationship (e.g. Nazarenko v. Russia).
Thus, only the substantive situation is relevant. However, the recognition of family life does not necessarily lead to a right to respect such family life. The questions of whether there is an interference with or a failure to comply with art 8 obligations are linked to the particular circumstances of the case, especially through the proportionality test.
As pointed out by Boev, the broad understanding of what is a family gives rise to new trends regarding for instance the recognition of non-traditional forms of family life or the international dimension of family ties, especially as in matters of child care. The following presentations focused on these two broad topics.

Thalia Kruger, International Child Abduction
Thalia Kruger showed in her presentation how the goals of the international child abduction instruments are disturbed when put to the test of the human rights perspective. Following the assumption that it is in the interest of the child not to be abducted, the 1980 Hague Child Abduction Convention and the Brussels II bis Regulation (No. 2201/2003) aim to facilitate the return of the child to his or her habitual residence. A return order must be issued within a period of six weeks. Only exceptional circumstances allow the State of the retention of the child not to order the return. Moreover, article 11 of Brussels II bis permits a second chance procedure to obtain return. Looking at the situation from the perspective of human rights, the Court considered that national authorities have to look into the particular situation of the child (see Neulinger v. Switzerland). Thus, the Court makes the best interests of the child the leading principle. The Court shifts from an in abstracto conception of the best interests of the child to an in concreto appreciation. Even though the Court explained later that it is possible to read the Hague Convention and the ECHR as aligned (X. v. Latvia), Kruger noted that the ECHR cases create sensitive dilemmas for the contracting States, for instance how to comply with the speedy proceeding obligation while taking into account all issues raised with respect to the best interests of the child.
According to Kruger, the Court’s interpretation also shows that the Brussels II bis enforcement rules may not be compatible with the best interests of the child.
The Bosphorus doctrine assumes compatibility of EU law with the ECHRs, but this applies only when courts have no discretionary power (for instance the abolition of exequatur; see Povse v. Austria). The application of the Bosphorus doctrine in the current context is problematic. Kruger concluded by noting that the on-going recast of Brussels II bis and the continuing efforts of the Hague Conference, such as its promotion of mediation, may provide a way to ensure the compatibility of the child abduction goals and the human rights standard.

Marilisa D’Amico and Costanza Nardocci, LGBT rights and the way forward:
From the perspective of the Oliari v. Italy case and the specific Italian experience, Costanza Nardocci presented an overview of the LGBT family rights. The last step in a long series of cases, Oliari illustrates the long path of same-sex couples before the ECtHR. A significant step was accomplished in 2010 with Schalk and Kopf v. Austria, when the Court recognized that same-sex couples are just as capable of enjoying family life as opposite-sex couples. The Court found that article 12 could be applicable to same-sex couples, but that at this stage the question of whether same-sex couples can marry is left to regulation by national law. However, referring to the large margin of appreciation of contracting States, it considered that there is no positive obligation to introduce same-sex marriage. Then, in 2013, embracing this new interpretation, the Court considered in Vallianatos and Others v. Greece that opening civil unions to opposite-sex couples only was a violation of articles 8 and 14. In the Oliari case, the Court held that there was a violation of article 8. It considered that Italy had violated its positive obligation to grant legal protection to same-sex couples. Recalling the specific situation of LGBT rights in Italy, Nardocci emphasized the contrast between the lack of legislative activity and the judicial and administrative activism for the recognition of same-sex couples, if only in a symbolic way. Thus, the condemnation of the Italian government in the Oliari case was not unexpected considering the previous warnings of by the Constitutional Court, which had urged the legislator to intervene. Although Oliari is specific to the Italian situation, it has to be considered an important step for same-sex couples in their pursuit of legal recognition. In other words, since the Oliari case the contracting States are now compelled to ensure a core legal protection for same-sex couples in a stable committed relationship.
However, as pointed out by Nardocci, the progress of same-sex couples’ right to family life has not gone hand in hand with similar advances for transgender persons. Even though the recognition of a positive obligation to provide legal protection is a huge step forward compared to past cases, the absence of a positive obligation to enact same-sex marriages could adversely affect transgender persons’ right to family life. As in Hämäläinen v/ Finland, transgender individuals still have to choose between their former marital life and the legal recognition of the new gender. Nardocci considered that a better use of the distinguishing technique between positive and negative obligations could provide more flexibility and lead to better protection of transgender persons.

Michael Wells-Greco, Spectrum of Reproductive Rights and the Challenges
Reproductive rights are one of the most sensitive and challenging topics the Court has had to deal with. The increasing use of medical technology in Europe has led to the emergence of a discussion as to their influence on reproductive choices The spectrum of reproductive rights is wide: it encompasses such issues as abortion (A.B. C; v. Ireland), home birth (Ternovszky v. Hungray; Dubskà and Krejzovà v. Czech Republic), embryo donation for scientific research (Parrillo v. Italy) and surrogacy (Mennesson and Labassée v. France; Paradiso and Campanelli v. Italy). In the ECHR, reproductive rights fall within the right to respect of private life. Considering the diversity of national policies and the ethical and moral issues these questions may raise, there is no consensus between contracting States. As a result, the Court generally leaves States a wide margin of appreciation.
Surveying each of these topics in turn, Michael Wells-Greco considered the existence of emerging trends. He showed that the Court has made a gradual evolution: an isolated national position regarding one issue does not necessarily come into conflict with the ECHR, as reproductive rights are deeply connected to national identities. However, once a contracting State takes the step to grant more rights in this field, it has to respect certain procedural guaranties (e.g. A.B.C. v. Ireland). Wells-Greco criticized this “all or nothing approach” that leaves no room for a potential future consensus and widens even more the divisions between contracting States. Conversely, it appears that the margin of appreciation is smaller when it comes to cross-border situations (e.g. Mennesson and Labassée v. France). How ever, as the PIL response may not take into consideration the human rights response, Wells-Greco advocates resorting to soft law to address the diversity of reproductive rights.

Klaudiuz Ryngielewicz, Contents of an individual application
Concluding the Conference, Klaudiuz Ryngielewicz explained the correct way to lodge an application (see the video) especially with regards to the new formalistic article 47 of the Rules of the Court (see the Report on the revised rule). The increasing number of applications have forced the Court to set strict criteria. After explaining how to fill in the application form, Ryngielewicz insisted on the fact that only a valid application can interrupt the 6-month time-limit set in article 35 of the Convention.
 
 

sexta-feira, 15 de abril de 2016

The Decay of Modern Customary International Law in Spite of Scholarly Heroism

Jean D'Aspremont
University of Manchester - School of Law; University of Amsterdam

2015

Global Community: Yearbook of International Law and Jurisprudence (2015)
Amsterdam Center for International Law No. 2016-08
Amsterdam Law School Research Paper No. 2016-18

Abstract:
This article sheds light on those conceptual artifices that made international custom – and behaviorally generated normativity – possible in international law and shows how international lawyers’ repeated fixes and sophistications have come to precipitate the decay of the modern way of organizing the behavioral generation of legal normativity in international law. After a few introductory considerations on the notion of custom and behaviorally generated normativity from a jurisprudential perspective, this article describes how the two-element doctrine of custom – that is what is called here ‘modern custom’ – was built by international courts and subsequently presented by international lawyers as being derived from Article 38 of the Permanent Court of International Justice. On that occasion, this study demonstrates that the traditional derivation of the two-element doctrine of customary law from the Statute of the Court rests on a false genealogy. This article goes on to show how this modern two-element doctrine proved deficient from the start, generating huge argumentative problems. Such problems – and the general inoperability of the two-element doctrine – did not, however, undermine the popularity of custom among international lawyers thanks to a wide array of virtues traditionally associated with customary international law. These virtues explain the impressive resolve and determination of international lawyers to vindicate or patch up the modern two-element doctrine of customary international law. Yet, as the last part of this article argues, the rescue of customary international law by international lawyers may prove counter-productive as it currently is accelerating the decay of the modern two-element doctrine of customary international law. The article ends with a few observations on the life and death of doctrines.

Number of Pages in PDF File: 42

Disponível em: <http://ssrn.com/abstract=2756904>. Acesso em: 08 abr. 2016.

quarta-feira, 13 de abril de 2016

The Costs of Unenforced Laws: A Field Experiment

Ben Depoorter
University of California Hastings College of Law; Ugent - CASLE; Stanford CIS

Stephan Tontrup
New York University School of Law

March 17, 2016

NYU School of Law, Public Law Research Paper No. 16-10
NYU Law and Economics Research Paper No. 16-12

Abstract:
Unenforced laws are controversial. Admonished by some for undermining public respect for the law and violating the separation of powers, symbolic laws are supported by others because they set goals that society may one day achieve. In this article we identify a hidden cost of laws that the state does not intend or lacks resources to enforce. Based on evidence from a controlled field experiment involving public smoking bans, we show that right violations impose psychological costs on right holders even if they are indifferent about the behavior targeted by the law. Our results also shed light on mechanisms of social-enforcement.

Number of Pages in PDF File: 24

 Disponível em: <http://ssrn.com/abstract=2749166>. Acesso em: 08 abr. 2016.

segunda-feira, 11 de abril de 2016

Instrumentalism


Timothy Meyer
Vanderbilt University Law School

March 29, 2016

J. d’Aspremont and S. Singh (eds), Fundamental Concepts for International Law: The Construction of a Discipline, Elgar, 2016, Forthcoming
Vanderbilt Public Law Research Paper No. 16-11

Abstract:
The tension between power and principle has long been central to international legal discourse. Instrumentalism — the idea that international law can change behavior, but only by creating constraints and opportunities that affect state interests — straddles this tension. This chapter chronicles the rise, role, and contestation of instrumentalism in international legal thought. On its own terms, instrumentalism is a descriptive tool to explain how power and norms interact to shape state behavior. Critics, however, worry that instrumentalism legitimates power politics by clothing them in the trappings of principled legal arguments. Arguments that international law is not “law” or is widely ineffective — arguments that critics fear are aimed at delegitimizing international law as a normative system — have fueled these fears. The chapter argues that instrumentalist thinking has largely survived these critiques. To be sure, instrumentalist scholarship often does aim for policy relevance, and it does view law’s effectiveness as contingent on political and social factors. But instrumentalism continues to flourish in both academic work and international legal practice, in large part because its usefulness as a descriptive tool has been used to understand how to make international law more effective.

The chapter concludes by considering a challenge to instrumentalism from closer to home. Borrowing from behavioralist studies in domestic law, scholars have begun to argue that the assumption of rationality often associated with instrumentalism is flawed. Instead, these writers emphasize the role of psychological biases in decision-making by international actors. This behavioral turn is promising. It remains to be seen, though, whether it will be more successful than prior critiques in modifying the basic instrumentalist framework.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=2756187>. Acesso em: 08 abr. 2016.

sexta-feira, 5 de fevereiro de 2016

Catholic Constitutionalism from the Americanist Controversy to Dignitatis Humanae

Anna Su 
University of Toronto - Faculty of Law

January 18, 2016

Notre Dame Law Review (2016 Forthcoming) 

Abstract:
This paper, written for a symposium on the 50th anniversary of Dignitatis Humanae or the Roman Catholic Church’s Declaration on Religious Freedom, traces a brief history of Catholic constitutionalism from the Americanist controversy of late nineteenth century up until the issuance of Dignitatis Humanae as part of the Second Vatican Council in 1965. It argues that the pluralist experiment enshrined in the First Amendment of the U.S. Constitution was a crucial factor in shaping church attitudes towards religious freedom, not only in the years immediately preceding the revolutionary Second Vatican Council but ever since the late nineteenth century when Catholicism became a potent social force in the United States. This history offers an opportunity to reflect on what the new global geography of Catholicism portends in the future as well as the importance of law in shaping religious change.

Number of Pages in PDF File: 25

Disponível em: <http://ssrn.com/abstract=2717683>. Acesso em: 05 fev. 2016.

segunda-feira, 25 de janeiro de 2016

The Emerging Recognition of Universal Civil Jurisdiction

Donald Francis Donovan 
Independent 

Anthea Roberts 
London School of Economics - Law Department 

January 1, 2006

American Journal of International Law, Vol. 100, p. 142, 2006 

Abstract:
This paper traces the emerging recognition of universal civil jurisdiction, which is a doctrine that would permit victims of the most serious violations of international law to bring tort claims for damages in any national jurisdiction, regardless of the location of the conduct or the nationality of the victim or defendant. We examine the rationale for such a doctrine, the existence of state practice in support of and against, and the appropriate limitations that might operate on the exercise of such jurisdiction.

Number of Pages in PDF File: 23

Disponível em: <http://ssrn.com/abstract=1514358>. Acesso em 20 jan. 2015.


sexta-feira, 22 de janeiro de 2016

Methodology

Jean D'Aspremont 
University of Manchester - School of Law; University of Amsterdam

January 1, 2016

J. d'Aspremont, Epistemic Forces in International Law - Foundational Doctrines and Techniques of International Legal Argumentation (Edward Elgar, 2015), pp. 177-199 

Abstract:
This paper constitutes a chapter of the author's monograph entitled 'Epistemic Forces in International Law' (Edward Elgar 2015). After formulating some general considerations on the relationship between theory and methodology, it builds on the idea that methodological choices are most conducive to the persuasiveness of legal arguments and explores the social constraints on methodological choices in international law (I). The paper then turns more specifically to international law and offers a handful of critical observations on methodological debates in contemporary international legal studies (II). In doing so, it revisits some of the methodological postures revered and venerated by international lawyers today: induction, the idea of system, the so-called turn to empiricism, interdisciplinarity and multidisciplinarity, the abiding (need for) methodological revolution, pluralism and methodological perspectivism. It ends with a few observations on deconstruction, structuralism and the critical attitude in international legal studies.

Number of Pages in PDF File: 13

Disponível em: <http://ssrn.com/abstract=2709970>. Acesso em 20 jan. 2015.

sexta-feira, 8 de janeiro de 2016

The AU Model Law on Universal Jurisdiction: An African Response to Western Prosecutions Based on the Universality Principle

Angelo Dube 
University of the Western Cape - Faculty of Law

November 24, 2015

Potchefstroom Electronic Law Journal, Vol. 18, No. 3, 2015 

Abstract:
The African continent has been consistent in placing its concerns regarding the manner in which international criminal justice is administered on the international platform. For the past decade, the continent has minced no words about its misgivings concerning the use of universal jurisdiction (UJ) by both foreign States and the International Criminal Court (ICC). The African Union (AU) has been very supportive of UJ and its utility in fighting impunity and affording justice to victims of the core crimes of international law, namely, genocide, war crimes and crimes against humanity. Often referred to as core crimes, these are regarded as customary law crimes which are an affront to entire humankind. These crimes were also codified by the Rome Statute of the ICC. However, the political and selective use of the principle of universality by foreign States to prosecute perpetrators of these crimes was seen as causing conflicts and undermining peace efforts, reconciliation and regional stability. As a result the African continent voiced its concerns at various public platforms, including under the auspices of the UN and it therefore called for reforms. This prompted the AU to produce its own model law on UJ, which African States could adapt to their own socio-political circumstances and legal context. The debates that ensued around UJ on the African continent offered African States a chance to contribute to the development of international law, especially on the rules concerning UJ. This paper analyses the interaction amongst African states that eventually led to the development of UJ regulations within their individual legal systems, and tries to determine if there is indeed an African signature in those legal rules.

Number of Pages in PDF File: 38

Disponível em: <http://ssrn.com/abstract=2702314>. Acesso em: 06 jan. 2016.

quarta-feira, 6 de janeiro de 2016

Choice of Law in the American Courts in 2015: Twenty-Ninth Annual Survey

Symeon C. Symeonides 
Willamette University - College of Law

December 31, 2015

American Journal of Comparative Law, Vol. 64, No. 1, 2016 Forthcoming 

Abstract: 
This is the Twenty-Ninth Annual Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws, and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside the United States.

This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2015, and posted on Westlaw by December 31, 2015. Of the 1,188 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and, particularly, choice of law. The following are some of the cases discussed:

--Three Supreme Court decisions, the first declaring unconstitutional all state laws against same-sex marriages, the second interpreting the commercial activity exception of the Foreign Sovereign Immunity Act, and the third further constricting the range of state law in matters relating to arbitration;

--A Second Circuit decision resuscitating for now that court’s theory that corporations are not accountable for international law violations under the Alien Tort Statute (ATS), and two decisions holding that the violations at issue did not “touch and concern the territory of the United States . . . with sufficient force”;

--Two cases refusing to allow a Bivens action for an extraterritorial violation of the Fourth Amendment and an intra-territorial violation of the Fifth Amendment, respectively, and several cases upholding the extraterritorial application of criminal statutes;

--Several cases refusing (and some not refusing) to enforce choice-of-law and forum-selection or arbitration clauses operating in tandem to deprive employees or consumers of their otherwise unwaivable rights;

--A New York Court of Appeals case explaining why a New York choice-of-law clause in a retirement plan did not include a conflicts rule contained in New York’s substantive successions statute;

--Several cases involving the “chicken or the egg” question of which law governs forum-selection clauses;

--A New Jersey decision ruling on actions for “wrongful birth” and “wrongful life,” and several other cases arising from medical malpractice, legal malpractice, deceptive trade practices, alienation of affections, and, of course, traffic accidents, along with products liability cases involving breast implants and pharmaceuticals;

--The first case granting divorce to a spouse married under a “covenant” marriage in another state, and a Texas case recognizing a Pakistani talaq;

--An Alabama Supreme Court decision refusing to recognize a Georgia adoption by a same-sex spouse on the ground that the Georgia court misapplied its own law regarding subject matter jurisdiction;

--A Delaware case holding that the Full Faith and Credit clause mandates recognition of a sister-state judgment that has recognized a foreign judgment, and does not allow examination of the underlying foreign judgment; and

--A case recognizing a foreign judgment challenged on the ground that the foreign country did not provide impartial tribunals or procedures compatible with due process.

Number of Pages in PDF File: 81

Disponível em: <http://ssrn.com/abstract=2709668>. Acesso em 05 jan. 2016.