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.

The Banking-Sovereign Nexus: Law, Economics & Policy

By:

This Article examines a previously overlooked policy interdependence between the International Monetary Fund (“IMF”) and the Basel Committee on Banking Supervision (“Basel Committee”), which results from economic dynamics associated with the “banking- sovereign nexus.” The main finding of this Article is that interventions by the IMF and the Basel Committee function as regulatory complements by subtly reinforcing one another through a number of channels. In order to leverage that complementarity, the Article presents the following two-part policy proposal. First, that the Basel Committee enhance the stringency of its capital requirements with an increase in the risk-weights that are assigned to sovereign bonds that banks hold as assets. Second, that the IMF revise its lending criteria to allow countries that have effectively implemented the stricter version of the Basel Rules to prequalify for access to its credit facilities.

Access to Trade Secret Environmental Information: Are TRIPS and TRIPS-Plus Obligations a Hidden Landmine?

By:

Freedom of Information laws (“FOI laws”) are fundamental to enabling access to environmental information. This Article argues that the specificity and strength of trade secret protections in TRIPS (article 39) and TRIPS-Plus regional and bilateral free trade agreements (“FTAs”) are hidden landmines that may unravel current access-to- information regimes (e.g. FOI laws). The aim of this Article is to delineate the nature and scope of the limits that TRIPS and TRIPS-Plus regimes place on domestic access-to-environmental-information regimes for information submitted to governments.

Bilateral Investment Treaties and Domestic Institutional Reform

By:

The bilateral investment treaties (“BITs”) signed between developed and developing countries are supposed to increase the flow of investment from the former to the latter. But the evidence indicates that the existing approach of guaranteeing special protections for foreign investors has only a modest impact on luring their dollars. This Article calls for a fundamental redesign of BITs based on empirically validated premises about how host States actually attract foreign investment. Political science and economic studies show that foreign investors place substantial weight on the quality of domestic institutions. Existing BITs fail to promote investment because they are not an adequate substitute for these institutions, nor are they effective in generating reform. The proposed model would make domestic institutional reform the organizing principle of BIT design, and the Article offers several specific provisions that would help achieve that goal.

The Continuing Evolution of U.S. Judgment Recognition Law

By:

The substantive law of judgments recognition in the United States has evolved from federal common law, found in a seminal Supreme Court opinion, to primary reliance on state law in both state and federal courts. While state law often is found in a local version of a uniform act, this has not brought about true uniformity, and significant discrepancies exist among the states. These discrepancies in judgments recognition law, combined with a common policy on the circulation of internal judgments under the United States Constitution’s Full Faith and Credit Clause, have created opportunities for forum shopping and litigation strategies that result in both inequity of result and inefficiency of judicial process. These inefficiencies are fueled by differences regarding (1) substantive rules regarding the recognition of judgments, (2) requirements for personal and quasi in rem jurisdiction when a judgment recognition action is brought (recognition jurisdiction) and (3) the application of the doctrine of forum non conveniens in judgments (and arbitral award) recognition cases. Recent cases demonstrate the need for a return to a single, federal legal framework for the recognition and enforcement of foreign judgments.