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  Party Like It’s 1989: Justice Scalia’s Rhetoric of Certainty

  Francis J. Mootz III

  Francis J. Mootz, III, Party Like It’s 1989: Justice Scalia’s Rhetoric of Certainty in Justice Scalia: Rhetoric and the Rule of Law (eds., Brian G. Slocum and Francis J. Mootz III, University of Chicago Press 2019).

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  The Contribution of Linguistics to Legal Interpretation

  Brian G. Slocum

  Brian G. Slocum, The Contribution of Linguistics to Legal Interpretation in Justice Scalia: Rhetoric and the Rule of Law (eds., Brian G. Slocum and Francis J. Mootz III, University of Chicago Press 2019).

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  United States: The Protection of Minority Investors and Compensation of Their Losses

  Franklin A. Gevurtz

  Franklin A. Gevurtz, United States: The Protection of Minority Investors and Compensation of Their Losses, in Global Securities Litigation and Enforcement at 109 (Pierre-Henri Conac and Martin Gelter, eds., Cambridge 2019).

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  From Extraction to Emancipation Development Reimagined

  Rachael Salcido, Karrigan Bork, Julie A. Davies, and Blake Nordahl

  Rachael E. Salcido, Rethinking Environmental Impact Assessment, in From Extraction to Emancipation Development Reimagined 71 (Raquel Aldana & Steven W. Bender, eds., Carolina Academic Press 2018).

  Karrigan Bork, Community-Based Biomonitoring: An Antidote to Insufficient Governmental Water Quality Monitoring and Enforcement, in From Extraction to Emancipation Development Reimagined 93 (Raquel Aldana & Steven W. Bender, eds., Carolina Academic Press 2018).

  Julie Davies, The Impact of Mining on Self-Determination of Rural Guatemalan Communities, in From Extraction to Emancipation Development Reimagined 153 (Raquel Aldana & Steven W. Bender, eds., Carolina Academic Press 2018).

  Blake Nordahl, A Migration Story from the Sugar Fields of Southwest Guatemala: A Case for Treating Corporations as Persecutors under Asylum and Refugee Law, in From Extraction to Emancipation Development Reimagined 237 (Raquel Aldana & Steven W. Bender, eds., Carolina Academic Press 2018).

  This edited volume uses Guatemala as a case study to examine broad global themes arising from development practices in emerging economies. It offers important lessons to investors and policymakers on strategies to improve distributional justice and respect for the rule of law, including human rights and environmental norms. The book examines global themes such as climate change, extractive industries, labor regimes, and forced migration, all of which have transborder implications and across-border commonalities.

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  Conclusion: Findings and Recommendations

  Linda E. Carter and Jennifer Schense

  Jennifer Schense and Linda Carter, Conclusion: Findings and Recommendations, in TWO STEPS FORWARD, ONE STEP BACK: THE DETRIMENTAL EFFECT OF INTERNATIONAL TRIBUNALS, at 1 (Jennifer Schense and Linda Carter co-ed., International Nuremberg Principles Academy 2016).

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  Introduction

  Linda E. Carter and Jennifer Schense

  Jennifer Schense and Linda Carter, Introduction, in TWO STEPS FORWARD, ONE STEP BACK: THE DETRIMENTAL EFFECT OF INTERNATIONAL TRIBUNALS, at 1 (Jennifer Schense and Linda Carter co-ed., International Nuremberg Principles Academy 2016).

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  The Evolution of International Law Relating to Transboundary Waters

  Stephen C. McCaffrey

  Stephen C. McCaffrey, The Evolution of International Law Relating to Transboundary Waters, in ROUTLEDGE HANDBOOK OF WATER LAW AND POLICY, at 205 (Alistair Rieu-Clarke, Andrew Allan & Sarah Hendry, eds., 2017)

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  Attacking Asset Protection LLCs

  Franklin A. Gevurtz

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  Hermeneutics and Law

  Francis J. Mootz III

  Chapter 71 Hermeneutics and Law, in The Blackwell Companion to Hermeneutics 595 (eds., Niall Keane and Chris Lawn, Wiley-Blackwell 2016)

  This chapter appears in an anthology on hermeneutics. After providing a hermeneutical phenomenology of legal practice that locates legal interpretation at the center of the rule of law, the chapter considers three important hermeneutical themes: (1) the critical distinction between a legal historian writing about a law in the past and a judge deciding a case according to the law; (2) the reinvigoration of the natural law tradition against the reductive characteristics of legal positivism by construing human nature as hermeneutical; and (3) the role of philosophical hermeneutics in grounding critical legal theory rather than serving as a quiescent acceptance of the status quo, as elaborated by reconsidering the famous exchanges between Gadamer, Ricoeur and Habermas. The chapter argues that these three important themes are sufficient to underwrite Gadamer's famous assertion that legal practice has exemplary status for hermeneutical theory.

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  Pollution of shared freshwater resources in international law

  Stephen C. McCaffrey

  Stephen C. McCaffrey, Pollution of Shared Freshwater Resources in International Law, in Transboundary Pollution Evolving Issues of International Law and Policy, at 81 (S. Jayakumar, Tommy Koh, Robert Beckman & Hao Duy Phan eds., Edward Elgar 2015).

  This important new book provides a comprehensive overview of the international legal principles governing transboundary pollution. In doing so, the experts writing in this book examine the practical applications of the State responsibility doctrine in this context. The editors bring together leading scholars and practitioners to analyse the international legal framework and cooperative mechanisms that have been developed to address this pressing issue. The book also includes case studies of Asia and Southeast Asia to demonstrate how international law governing transboundary pollution has evolved and been applied in practice.

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  The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court

  Alexa Koenig, Mychelle Baltharzard, Eric Stover, and Stephen Smith Cody

  When the International Criminal Court (ICC) was created in 1998, its founders hailed it as a “victims’ court,” one that would give survivors of mass atrocity an influential voice in the administration of justice. In the nearly two decades since its establishment, thousands of victims have been registered as “victim participants,” and thousands more have applied to the court for acceptance. However, there is now widespread agreement, both inside and outside of the court, that the ICC victim participation programs need reform. Court staff and outside observers have argued that current levels of outreach, care, and support are inadequate and incorporation of the views of so many victims is unworkable. Both defense and prosecution teams have also questioned whether victims’ representations, filings, and testimony have sometimes had an adverse effect on the fairness of ICC trials.
  
  But what of the victim participants themselves? What motivated these men and women to become victim participants? Was it to tell their story and to have it acknowledged by the court? Did they wish to see the accused punished? Or was it more important to receive reparations for the harms they suffered? What did they think of the process of becoming a victim participant? What were their perceptions of the court and how it operated? How were their interactions with court staff? And did they have security or safety concerns?
  
  To explore these and other questions, we interviewed ICC victim participants in four countries where the ICC had initiated investigations and prosecutions of serious international crimes — Uganda, Democratic Republic of Congo, Kenya, and Côte d’Ivoire. Our interviews with 622 victim participants and dozens of key informants strongly suggest that the ICC has reached a critical juncture in its victim participation program. It is our view that the court must either invest more resources and think more creatively about how it can meet the pragmatic and psychosocial needs of victim participants in its present form or revamp the program entirely. Despite admirable efforts by ICC staff, both in The Hague and in victims’ home countries, most victim participants, our findings indicate, have only a rudimentary knowledge of the ICC and its mandate. They want more contact with the court, are deeply frustrated by the slow pace of the proceedings, and expect to receive individual reparations. What remains to be seen is if the ICC (and the states that support it) can make the necessary reforms to meet these expectations.

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  Banking and Financial Institutions Law in a Nutshell

  Michael P. Malloy and William A. Lovett

  Contents:

  • Evolution of banking and financial institutions law
  • Money and banking
  • Banking market regulation
  • Thrift institutions
  • Securities market regulation
  • Insurance regulation
  • Pension funds, retirement accounts and social security
  • Controversies and prospects.

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  Banking Law and Regulation

  Michael P. Malloy

  The second edition of this study, supplemented three times a year, brings into sharp focus a cascading series of events that have transformed the financial services industry in ways that would have seemed close to incredible when the first edition was published in 1994. Many dramatic developments in the twenty-first century have reshaped the regulation of banks, savings associations, credit unions, and other financial services firms. This exhaustive work provides discussion and analysis of financial services regulation, including extensive treatment of the Dodd-Frank Wall Street Reform and Consumer Protection Act—not just an isolated discussion of the Dodd-Frank Act but a fully integrated treatment of the impact of the act on all topics covered in this study. In addition, the work offers detailed discussion of all major regulatory developments of the past two decades, affecting regulatory structures, formation, branching, management, control transactions, corporate powers, securities regulation and securities activities, holding company activities, mergers and acquisitions, conversions, troubled and failing institutions, systemic risks, and international regulatory policy.

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  Bearing Witness at the International Criminal Court: An Interview Survey of 109 Witnesses

  Alexa Koenig, Stephen Smith Cody, Eric Stover, and Robin Mejia

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  Core Principles for Effective Banking Supervision: New Concepts and Challenges

  Michael P. Malloy

  Michael P. Malloy, Core Principles for Effective Banking Supervision: New Concepts and Challenges, in Selected Legal Issues in Economics 11 (David A. Frenkel, ed., Athens Inst. for Educ. and Res. 2014).

  This paper examines certain fundamental issues raised by the existence and application of the newly revised Core Principles for Effective Banking Supervision. First, what expectations are imposed upon jurisdictions that adopt the Core Principles? Second, are the Core Principles an effective response to the international financial crisis? Third, what is the legal status of the Core Principles–mere guidelines, a significant new source of law in international practice, or something in between? The paper argues that the Core Principles represents a distinctive and highly effective approach to the coordination of legal norms across borders that, in the context of international banking practice, may operate as a set of functionally binding norms – and possibly a new source of law in international practice.

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  First Responders: An International Workshop on Collecting and Analyzing Evidence of International Crimes

  Stephen Smith Cody, Alexa Koenig, Andrea Lampros, and Julia Rayner

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  Immigration Federalism and Rights

  Raquel Aldana

  Chapter 4 in Immigration Regulation in Federal States (Sasha Baglay and Delphine Nakache, eds., Springer 2014).

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  The International Law of Property

  John G. Sprankling

  This is the first book to explore the subject of international property law. While traditionally viewed as a national concern, identifiable areas of property law have emerged at the international level; the foundation is now being laid for a comprehensive regime. The evolution of international property law was influenced by major economic, political, and technological changes, including the embrace of private property by former socialist states after the Cold War; globalization of investments and trade; the birth of new technologies for exploiting the global commons; and increasing recognition of the human right to property. The first section of the book analyzes how international law impacts rights in specific types of property. It creates property rights in certain situations, such as rights in aboriginal lands and satellite orbits. In other areas, it harmonizes property rights that arise at the national level, such as rights in intellectual property and security interests in personal property. Finally, it sometimes restricts or prohibits the property rights that may be recognized at the national level, such as rights in celestial bodies, contraband, and humans. The second section of the book develops the thesis that a global right to property should be recognized as a general matter as to all types of property, not merely as a moral precept but rather as an entitlement that all states must honor. It examines five components of the global right: the rights to (a) acquire; (b) use; (c) destroy; (d) exclude; and (e) transfer.

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  A Reflection on Transitional Justice in Guatemala 15 Years After the-Peace Agreements

  Raquel Aldana

  Chapter 18 of Victims of International Crimes: An Interdisciplinary Discourse 297 (Thorsten Bonacker & Christoph Safferling, eds., Springer 2013).

  This chapter is a reflection of what the wartime prosecutions in Guatemala have achieved in the past fifteen years since the signing of the peace agreements. Through their participation in emblematic wartime cases in Guatemala, victims have infused the justice system with accountability to make it harder for individual prosecutors or judges to dismiss the cases; they have brought resources that have resulted in better investigations, better trials and better evidence and even more protection for the brave prosecutors and judges and they have creatively pushed the boundaries of law to advance criminal law and procedural doctrines in accordance with international legal developments. However, these heroic efforts in important individual cases have yielded few lasting reforms in the judicial system of Guatemala. It is time for Guatemala to acknowledge that it has asked too much the victims and to consider alternative models for addressing the persistent and endemic problems of transitional justice in the country.

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  Governing Foolishness: A Comparative Analysis of Executive Compensation Rules

  Michael P. Malloy

  Michael P. Malloy, Governing Foolishness: A Comparative Analysis of Executive Compensation Rules, in Economy and Commercial Law - Selected Issues 31 (David A. Frenkel, ed., Athens Inst. for Educ. & Res. 2013).

  This paper explores three approaches to limits on executive compensation as responses to the current financial crisis. Each approach has been established or endorsed by a different policy making institution. The first approach is the executive compensation provision of the Dodd-Frank Act, which was enacted as the U.S. Government’s principal response to the financial crisis. The second approach is the European Commission’s Green Paper on executive compensation, issued just weeks before enactment of the DFA and with much the same intention. The third approach is a set of non-binding guidelines issued by the Basel Committee on Banking Supervision based at the Bank for International Settlements in Basel, Switzerland. Only the third approach is specifically intended for use in the supervision of financial services firms; the other two impose or recommend requirements on executive compensation. Despite a flurry of public attention over a few causes célèbres, in which corporate executives had their compensation threatened or actually curtailed, current empirical data on executive compensation strongly suggest that these limitations on executive compensation are of negligible effect. The paper argues that these limits are a distraction from the real issues in the financial services markets, like, for example, fraud, manipulation, gross negligence during the run-up to the crisis.

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  What the best law teachers do

  Michael Hunter Schwartz, Gerald F. Hess, and Sophie M. Sparrow

  What the Best Law Teachers Do introduces readers to twenty-six professors from law schools across the United States. These instructors are renowned for their exacting standards: they set expectations high, while also making course requirements—and their belief that their students can meet them—clear from the outset. They demonstrate professional behavior and tell students to approach class as they would their future professional life: by being as prepared, polished, and gracious as possible. And they prepare themselves for class in depth, even when they have taught the course for years.

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  Chapter 18: Legal Protection of the Environment

  Stephen C. McCaffrey and Rachael E. Salcido

  Stephen C. McCaffrey and Rachael E. Salcido, Legal Protection of the Environment, in Comparative Law and Society (David S. Clark, ed., Edward Elgar 2012).

  Comparative Law and Society, part of the Research Handbooks in Comparative Law series, is a pioneering volume that comprises 19 original essays written by expert authors from across the world. This innovative handbook offers both a history of the field of comparative law and society and a thorough exploration of its methods, disciplines, and major issues, presenting the most comprehensive look into this contemporary field to date.

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  The International Rights of Migrants

  Raquel Aldana

  Chapter 45 in the Handbook of Human Rights edited by: Thomas Cushman.

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  Die Sache: The Foundationless Ground of Legal Meaning

  Francis J. Mootz III

  Chapter Die Sache: The Foundationless Ground of Legal Meaning, in The Semiotics of Law in Legal Education.

  Clients do not approach their lawyer with a legal problem but they approach the lawyer with a problem in their everyday life that is articulated through narratives that are not exclusively, or perhaps not at all, legal in nature. The lawyer then must find the legal narrative to adapt to the problem and construct a narrative of law from the resources of legal reasoning. This insight about the work of lawyers as makers and managers of meaning is all too often reduced to a simplistic picture in which the lawyer tells a “story” to trigger the proper elements of the “objective” legal principles. This reinstates the dichotomy that the focus on the narrative character of law is in opposition to the fixed and objective character of the law itself, so that narrative is not appropriate with regard to the law. Hans-Georg Gadamer’s philosophical hermeneutics and the philosophical term die Sache are premised on the assumption that the other’s horizon of pre-understanding provides a different angle: hermeneutical responsibility is not owed to the other person as a supposed separate subjectivity; instead, it is owed to the subject matter about which the dialogue partners converse: die Sache. This viewpoint has practical import by considering legal reasoning as an exemplary case of our responsibility to die Sache and also has important implications for legal education.

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  Gadamer's Rhetorical Conception of Hermeneutics as the Key to Developing a Critical Hermeneutics

  Francis J. Mootz III

  Gadamer's Rhetorical Conception of Hermeneutics as the Key to Developing a Critical Hermeneutics, in Gadamer and Ricoeur: Critical Horizons for Contemporary.

  The rhetorical dimensions of Gadamer's philosophical hermeneutics have not been fully developed by his commentators, resulting in an overly conservative rendering of his philosophy. Drawing out the rhetorical features of his work, we find that Gadamer regards textual interpretation as a rhetorical accomplishment. This characterization leads to a rich conception of critical hermeneutics. The chapter develops Gadamer's rhetorical hermeneutics by contrasting his approach with Paul Ricoeur's famous intervention in the Gadamer-Habermas debate, and looks to Gadamer's account of legal practice as a manifestation of critical hermeneutics in action.