Emory International Law Review

Volume 26Issue 1
Dedication

The Editorial Board | Emory Int'l L. Rev. i (2012)

Last fall, the Emory International Law Review lost a great advisor and friend. We, the staff of EILR, mourn the passing of Professor David J. Bederman, and it is with extremely heavy hearts that we write to remember him.

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Recent Developments

State Interference in the Internal Affairs of Religious Institutions

Johan D. van der Vyver | 26 Emory Int'l L. Rev. 1 (2012)

On September 8, 2011, a labor court in Germany decided that the dismissal of the medical superintendant at a Catholic hospital was unlawful. The Catholic Church discharged the doctor following his civil divorce and his remarriage. Because the Church does not recognize the validity of a divorce from marriage, it did not recognize the legality of the doctor's second marriage and therefore condemned him for being engaged in an extramarital (adulterous) relationship with his second wife. The doctor contested the legality of his dismissal under the labor laws of Germany and brought suit against the Church before the labor court.

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Establishing a Third Gender Category in Nepal: Process and Prognosis

Michael Bochenek, Kyle Knight | 26 Emory Int'l L. Rev. 11 (2012)

In December 2007, the Supreme Court of Nepal issued a groundbreaking verdict in favor of sexual and gender minorities. The decision in Pant v. Nepal quickly became famous for declaring full, fundamental human rights for all “sexual and gender minorities”—lesbian, gay, bisexual, transgender, and interest (“LGBTI”) citizens.

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Constitutionality of U.S. Participation in the United Nations-Authorized War in Libya

Jordan J. Paust | 26 Emory Int'l L. Rev. 43 (2012)

In March 2011, President Barack Obama decided that the United States would participate with other members of North Atlantic Treaty Organization (“NATO”) in the use of military force in Libya authorized by the United Nations (“UN”) Security Council in Resolution 1973, which “[a]uthorizes Member States . . . to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack in” Libya.

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Protecting the Reproductive Rights of Children and Young Adults with Disabilities: the Roles and Responsibilities of the Family, the State, and Judicial Decision-Making

Trynie Boezaart | 26 Emory Int'l L. Rev. 69 (2012)

Angela was an eleven-year-old girl with Rett’s Syndrome, a progressive neurological disorder that results in severe intellectual and physical impairment and epilepsy. Angela could not talk and had “neither the coordination or the mental faculties to be able to use sign language.” She acted “as a three month-old baby would.”

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Articles

Complex Legal Frameworks and Complex Operational Challenges: Navigating the Applicable Law Across the Continuum of Military Operations

Laurie R. Blank | 26 Emory Int'l L. Rev. 87 (2012)

Modern conflicts and stability operations pose complex challenges for both military and civilian actors tasked with promoting the rule of law during conflicts and stability operations. Military operations can occur both during armed conflict and in situations that do not qualify as armed conflict, such as disaster relief or humanitarian intervention. The now oft-used term “stability operations” encompasses U.S. military activities conducted “outside the United States in coordination with other instruments of national power to maintain or reestablish a safe and secure environment, provide essential governmental services, emergency infrastructure reconstruction, and humanitarian relief.”

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Defining Sex Trafficking in International and Domestic Law: Mind the Gaps

Michelle Madden Dempsey, Carolyn Hoyle, Mary Bosworth | 26 Emory Int'l L. Rev. 137 (2012)

Whether as a result of conceptual disagreement regarding what counts as sex trafficking, political disagreement regarding what should be done about it, or simply a lack of political will, there was no internationally recognized definition of sex trafficking until 2000. This is not to say, however, that the international community took no interest in sex trafficking before this time. Indeed, even before 2000, numerous instruments of international law called for the abolition of sex trafficking. The problem was, none of them offered a definition of what was to be abolished. Thus, notwithstanding widespread agreement that something should be done about sex trafficking, there seemed to be little agreement on what, precisely, sex trafficking was.

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Due Process and Counterterrorism

Amos N. Guiora | 26 Emory Int'l L. Rev. 163 (2012)

Counterterrorism—like terrorism—is a reality. Nations have the absolute obligation and right to protect innocent civilians against those seeking to harm them. However, implementation of counterterrorism obligations must be tempered by due process. The essence of democracy is granting—and protecting—the civil and political rights of attacker and attacked alike. Failure to provide due process to individuals suspected of involvement in terrorism leads a society down a slippery slope from which there is no return.

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Moving to an Oral Adversarial System in Mexico: Jurisprudential, Criminal Procedure, Evidence Law, and Trial Advocacy Implications

Paul J. Zwier, Alexander Barney | 26 Emory Int'l L. Rev. 189 (2012)

In 2008, Mexico passed a series of federal constitutional reforms requiring oral adversarial criminal trials. The reforms give Mexican states until 2016 to implement the shift from a written inquisitorial system to the new oral adversarial system. At the time of this writing, twenty-four states have implemented the changes to some degree, with varying degrees of success.

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Comments

Corporate Liability under the Alien Tort Statute: The Second Circuit’s Misstep around General Principles of Law in Kiobel v. Royal Dutch Petroleum Co.

Tyler G. Banks | 26 Emory Int'l L. Rev. 227 (2012)

In Richard Wagner’s opera Lohengrin, a knight appears at the prayers of a maiden to defend her against accusations of murder. The knight agrees to wed her on the condition that she never ask his name or from whence he came. As such, when Judge Friendly called the Alien Tort Statute (ATS) a “legal Lohengrin,” he was referencing the peculiar origin and nature of this aged statute. Although we are well aware of the origins of the ATS, its inactivity for almost 200 years clouded it in an aura of mystery. Now, almost thirty years after its revival by the Second Circuit, that same court may have stripped the ATS of its ability to defend its maiden, the victims of tortious actions attributable to corporate entities.

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Supplemental Jurisdiction over Foreign Patents: Permissible, So Long As Limitations Apply

Yahn-Lin (Franklin) Chu | 26 Emory Int'l L. Rev. 283 (2012)

The growing internationalization of patent activity is promoting innovation and facilitating technology transfers on an increasingly globalized level. The World Intellectual Property Organization (“WIPO”) has reported an increase in the number of patents filed and issued worldwide and a growing trend of applicants filing their applications in multiple nations. The internationalization of patent activity can also be seen in the Patent Cooperation Treaty (“PCT”), the Patent Law Treaty, and the numerous calls for the streamlining and harmonization of patent law among different jurisdictions. The process of seeking patent protection and enforcing patent rights is one filled with international considerations.

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Toxic Toys and Dangerous Drywall: Holding Foreign Manufacturers Liable for Defective Products—The Fund Concept

Stephanie Glynn | 26 Emory Int'l L. Rev. 317 (2012)

The mid-decade building boom coupled with post-Hurricane Katrina reconstruction led to a nationwide drywall shortage in the United States in 2005 and 2006, forcing builders to turn to imports. Prior to 2005, drywall imports from China were negligible; however, since 2006, the United States has imported more than 550 million pounds of drywall from China because it is “abundant and cheap.”

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Saving Cricket: A Proposal for the Legalization of Gambling in India to Regulate Corrupt Betting Practices in Cricket

Rohani Mahyera | 26 Emory Int'l L. Rev. 365 (2012)

In 2010, the International Cricket Council (“ICC”), cricket’s world-governing body, prosecuted three Pakistani players for spot-fixing under its anti-corruption code over a betting scandal that occurred during a cricket match.

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A New Global Legal Order, with or without America: the Case for Accrediting Foreign Law Schools

Sabina Schiller | 26 Emory Int'l L. Rev. 411 (2012)

What David Wilkins has to say might scare the bejesus out of you. In a speech to the American Bar Association's (“ABA”) House of Delegates at the 2010 Annual Meeting, the Harvard law professor, speaking animatedly in an appropriately enthusiastic suit, admits precisely as much immediately before divulging to the crowded room that the American legal profession is currently undergoing substantial upheaval.

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Is Bollywood Unlawfully Copying Hollywood? Why? What has Been Done About It? And How Can It Be Stopped?

Arjun Shah | 26 Emory Int'l L. Rev. 449 (2012)

A popular film favorite among lawyers and law students is the 1992 Oscar-winning comedy, My Cousin Vinny. The film features Joe Pesci as a quick-witted but hapless attorney defending two innocent New York teens from a capital murder charge in the Deep South. It was fitting, then, that a film about law and justice would be used as a guinea pig in Hollywood's most aggressive attempt to enforce its copyrights against unauthorized Bollywood remakes of Hollywood movies.

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Book Review

The Eichmann Trial

Gregory S. Gordon | 26 Emory Int'l L. Rev. 489 (2012)

In 1960, the Israeli government abducted key Holocaust organizer Adolf Eichmann from Argentina and put him on trial in Jerusalem the following year. On the proceeding’s fiftieth anniversary, renowned Holocaust historian Deborah Lipstadt’s The Eichmann Trial offers a timely update to the only other book to focus primarily on the trial itself—Hannah Arendt's controversial Eichmann in Jerusalem: A Report on the Banality of Evil. As its famous subtitle suggests, Arendt’s book has more of a philosophical, as opposed to a legal, focus.

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