Monetary Mechanisms in Work Migration

This Article explores the institutional role monetary mechanisms play, or could play, in work migration programs. The Article first explores the role of informal recruitment fees in this context. The Article then analyzes different monetary bond and reward models and the ways in which they can address the screening and enforcement challenges that are created by the structure of guest worker programs and exacerbated by fees. Acknowledging the virtues as well as the limitations of monetary regulation in the context of work migration calls for further creative thinking about institutional design in this field.

Europe’s Moral Margin: Parental Aspirations and the European Court of Human Rights

The European Court of Human Rights (ECtHR) balances along two axes: individual right vs. government interest and national vs. supranational judgment. The Court calibrates the level of deference it affords States through the margin of appreciation, a doctrine designed to vary how strictly the supranational court will scrutinize national decisions. This Article challenges the way in which the Court deploys margin of appreciation in order to defer to “sensitive moral and ethical” decisions taken by domestic institutions. I call this deference the “moral mar-gin.” Although the European Convention on Human Rights explicitly authorizes the Court to take “protection of morals” into account when weighing rights claims, I argue that the Court has used this authorization in a manner that fails to honor its role within Europe.

Customary Law Principles as a Tool for Human Rights Advocacy: Innovating Nigerian Customary Practices Using Lessons from Ugandan and South African Courts

The concept of human rights has been criticized by some African scholars and leaders as a Western imposition of values, with such criticisms delegitimizing human rights efforts in Africa. In addition, international human rights institutions are often too far-removed from the everyday realities of most Africans, and thus are abstract means of vindicating basic rights and freedoms. This Note argues, in light of this context, and in response to anti-imperialist human rights criticisms, that a more immediate and seemingly legitimate means of human rights reform lies in courts using customary law norms, and the principles inherent at their origin, to push customary law to be more human rights compatible.

Hiding in the Light: the Misuse of Disclosure to Advance the Business and Human Rights Agenda

Under the MSA, corporations are required to file annual reports disclosing what action they had taken to eradicate slavery and human trafficking in their supply chains. The Modern Slavery Act, in turn, was a much-lauded law that is part of the growing trend of States to move the international business and human rights agenda forward. A key component of that agenda involves disseminating the UN’s Protect, Respect and Remedy Framework and implementing the UN Guiding Principles, which have been praised by States around the world as a framing mechanism for issues of corporate accountability for negative human rights impacts in a corporation’s operations and relationships with its suppliers. The aim of this Article is to analyze whether the business and human rights agenda (as embodied by the Three Pillar Framework and UN Guiding Principles) is well served with national laws that focus on disclosure.

Language as a Canary: The Role of Language in the Refugee Regime

This Note will explore the role of language in asylum claims and specifically how and why language discrimination can serve as a predominate indicator of persecution on the basis of nationality by examining language rights in relation to identity, nationality, and power dynamics. Overall, this Note aims to persuade the refugee regime to pay more attention to language discrimination, because even if it doesn’t amount to persecution by itself, language may be the canary for escalating social tensions.

Forced Evictions: Racial Persecution and Social Exclusion of the Roma Minority in Romania

The increase in forced evictions of Roma communities in the European Union is cause for alarm. In Romania, the Member State with the largest Roma population, they are part of a consistent practice of racial segregation and social exclusion. The discriminatory intent of forced evictions and the lack of domestic procedural safeguards constitute a violation of the country’s international and regional treaty obligations. However, despite a recent influx of cases that reveal the influence of prejudice over the relevant state action, the European Court of Human Rights has failed to resolve the matter. This Note proposes a new legal framework for the Court to adopt in its adjudication of cases concerning forced evictions of vulnerable minorities.

Obscenity and Nationalism: Constitutional Freedom of Sexual Expression in Comparative Perspective

This Article surveys the development of constitutional obscenity jurisprudence in the United States, Canada, India, and Japan. In the late nineteenth and early twentieth centuries, each of these jurisdictions imposed restrictive Victorian standards of sexual morality on literature and the arts. In the second half of the twentieth century, their constitutional courts began seriously considering free expression claims brought by artists and writers prosecuted for obscenity. These courts have all struggled with a central paradox. Obscenity law criminalizes speech because it is offensive, but freedom of speech is an empty concept if it does not include the freedom to offend. This Article concludes that while obscenity law evidently does little to protect public morality or prevent harm, it can be a dangerous weapon in the hands of groups seeking to enforce political, social, and cultural conformity.

Holocaust Expropriated Art Recovery (HEAR) Act of 2016: A Federal Reform to State Statutes of Limitations for Art Restitution Claims

This Note provides a scholarly engagement with the Holocaust Expropriated Art Recovery
(HEAR) Act of 2016—new U.S. legislation that has important implications for the art market—including a detailed examination of the legislative history and its text. The
Note describes how international public law commitments, political developments, and
recent judicial decisions motivated the passage of the HEAR Act in a mere matter of
months with overwhelming bipartisan support. The HEAR Act will bring dramatic and claimant-friendly changes to the existing legal landscape. But despite the widespread support for the new legislation, the Note highlights some unvoiced concerns.

Public and Private International Law in International Courts and Tribunals: Evidence of an Inescapable Interaction

Public international law and private international law have traditionally been perceived as being distinct and unrelated. The practice of international courts and tribunals shows that in reality both fields are interdependent, complementary and mutually supportive. The present contribution highlights how the International Court of Justice and tribunals dealing with investment arbitration and commercial arbitration have developed a pragmatic body of case-law that has allowed public international law and private international law to nurture each other.

Toward a Unified Theory of Materiality in Securities Law

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Regulatory efforts in the United States and European Union have recently refocused on materiality, an essential but elusive securities law concept. The renewed focus is due in part to increasing globalization of capital markets, data, and information channels that has highlighted inconsistencies in theory and application. In the United States, the Supreme Court has loosely defined materiality through a line of cases beginning with TSC Industries v. Northway and Basic, Inc. v. Levinson, whose reasonable investor rubric is frequently disregarded by lower courts, prosecutors, and the Securities and Exchange Commission. Meanwhile, in the E.U., courts have only lightly addressed materiality. Scholars in law and behavioral economics have criticized the TSC-Basic rubric for its ambiguity, unpredictability, and disconnection from market psychology. Recognizing these criticisms, this Article conducts an international comparative investigation of materiality in the legislation, regulation, and case law of the United States and European Union, revealing a shared, probabilistic Bayesian infrastructure. The Article then proposes a flexible Bayesian framework that harmonizes the substantive evaluation of materiality under existing U.S. and E.U. law. Finally, it models application of the framework using Bayesian network analysis in the context of a hypothetical stock transaction. Download [650.04...