Minnesota Journal of International Law最新文献

{"title":"Snoozing Democracy: Sunset Clauses, De-Juridification, and Emergencies","authors":"Antonios Kouroutakis, S. Ranchordás","doi":"10.2139/SSRN.2594307","DOIUrl":"https://doi.org/10.2139/SSRN.2594307","url":null,"abstract":"In the last decades, we have witnessed two contradictory tendencies in lawmaking throughout the Western world: On the one hand, there is a tendency to 'juridify' almost every single aspect of society, ensuring that almost no detail is left unregulated. On the other, at times of economic or political crisis, a part of society is 'de-juridified', that is, law disappears strategically as multiple rules are temporarily put on hold, rights are suspended and courts are deactivated. This Article focuses on this ambivalence and on the role played by sunset clauses to operationalize both temporary juridification and de-juridification. Sunset clauses have often been used in common law and, more recently, in civil law countries to 'juridify' and 'de-juridify' since these legislative provisions provide that a specific piece of legislation shall expire automatically on a specific date. These dispositions can be used not only, to enact exceptional and temporary emergency measures (e.g. temporary policies to provide financial assistance to firms) but also to remove procedural obstacles that stand in the way of rapid decisionmaking. Temporary de-juridification through sunset clauses might seem at first sight an effective method to tackle emergencies, guaranteeing that extraordinary powers do not become entrenched. However, this Article demonstrates that in the past rights and institutions have been too easily suspended at times of crisis and temporary measures have often been extended beyond the original critical periods. Not surprisingly, this has had pernicious effects on the principle of separation of powers and the protection of human rights. Although the mentioned ambivalence of de-juridification at times of crisis has been perceived as a problem in multiple jurisdictions, not much attention has been devoted to it in the legal literature. This Article fills this gap by analyzing the nature and functions of temporary de-juridification through sunset clauses and explaining the risks of hasty de-juridification. This Article provides a historical and comparative account of the implementation of temporary de-juridification through sunset clauses. Based on these lessons, we suggest a normative framework to help rethink particularly the temporary de-juridification of human rights and address the negativity which is often associated with sunset clauses.","PeriodicalId":104757,"journal":{"name":"Minnesota Journal of International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131424266","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Weak States and Terrorist Organizations: A Proposed Model of Intervention","authors":"Ilan Fuchs","doi":"10.2139/ssrn.1744190","DOIUrl":"https://doi.org/10.2139/ssrn.1744190","url":null,"abstract":"The war on terrorism in the post 9/11 reality brings constant challenges to jurists. One of these challenges deals with terrorist organizations like al-Qaida that build terrorist infrastructure in various parts of the Third World, such as in Africa and the Middle East where the central government is either weak or absent. Be it in parts of Sudan or in Yemen the vast areas that give ample hiding ground for terrorists coupled with a weak government that can’t stop Al-Qaida make them a heaven for terrorists. This article raises the question what can be done in such a scenario? What tools does a government combating al-Qaida have when terrorists find a safe haven in remote parts of the globe far away from the control of a government, which might be sympathetic to the war on terrorism but for geo-political reasons lack the will and means to drive Al-Qaida away. We argue that in a situation where a state does not have the ability to control parts of its territory taken by terrorists which are using it as a base of operation to launch attacks on a third state, this failure to act raises the right of self-defense to the attacked party. When a state loses its sovereignty to a terrorist organization and it cannot fulfill its duties, it forfeits some of the privileges that sovereignty entails. However since this inaction is not a voluntary one, the actions against the terrorist organization thus infringing on the sovereignty of the weak state should be gradual and allow the weak state the opportunity to resume its capacity as a sovereign state. We suggested a list of tactical measures that have a lesser effect on sovereignty and allow the weak state to choose between acting against the terrorist entity or allowing the intervening force to do so on its behalf.","PeriodicalId":104757,"journal":{"name":"Minnesota Journal of International Law","volume":"192 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123010525","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"When Courts and Congress Don’t Say What They Mean: Initial Reactions to Morrison v. National Australia Bank and to the Extraterritorial Jurisdiction Provisions of the Dodd-Frank Act","authors":"Richard W. Painter, Doug Dunham, Ellen P. Quackenbos","doi":"10.2139/SSRN.1662590","DOIUrl":"https://doi.org/10.2139/SSRN.1662590","url":null,"abstract":"This article explores two issues that arise from a case decided by the Supreme Court this term: Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010), which held that the Securities Exchange Act antifraud provisions do not apply to claims brought by foreign investors against foreign defendants over securities transactions outside the United States (so called f-cubed securities litigation). First, throughout the opinion Justice Scalia defined the reach of the federal securities laws based on a single inquiry: whether the United States was the place of the securities transaction. Then in summarizing the holding he said that Exchange Act Section 10(b) applies only to “transactions in securities listed on domestic exchanges . . . and domestic transactions in other securities.” The problem is that the National Australia Bank (NAB) securities at issue in the case were in fact listed in the United States, which was required so NAB could have American Depository Receipts (ADRs) trade in New York. For other issuers that list the same securities both in the United States and in another country, as many issuers do, the confusion created by Justice Scalia’s summary of the holding could be problematic. As discussed more fully in this article, the Court did not intend to grant a right to sue in the United States when such securities are bought outside the United States, but this will not stop some plaintiffs from claiming otherwise. This article explains why this argument is incorrect. Next Congress has had its own drafting problems. In the Dodd-Frank Act, Congress wanted to respond to Morrison by giving the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) power to pursue fraudulent conduct inside the United States that affects securities transactions outside the United States. For SEC and DOJ suits, Congress intended to reverse Morrison and make United States securities laws apply. Congress drafted the Dodd-Frank provisions based on the assumption that the question they were addressing – whether the securities laws applied to transactions outside the United States – was a question of subject matter jurisdiction, which is how courts of appeals had analyzed the issue for the past forty years. The Dodd-Frank provisions responded to Morrison by expressly giving federal courts jurisdiction in certain circumstances over SEC and DOJ suits concerning securities transactions outside the United States. The problem is that the Supreme Court in Morrison had already decided that under existing law federal courts had jurisdiction over these cases and that jurisdiction thus was not the issue. Rather, securities transactions outside the United States were not covered by the language of Section 10(b), a question of the merits. It seems obvious what Congress intended to do. The problem is that a credible case can be made that Congress didn’t do it. Indeed, the day the Dodd-Frank Act was signed by the President, George Conway, the lawyer who ha","PeriodicalId":104757,"journal":{"name":"Minnesota Journal of International Law","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122229617","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}