Journal of Transnational Law

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webcomm — Thu, 16 May 2013 20:03:37 +0000

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International Student Athletes and NCAA Amateurism: Setting an Equitable Standard for Eligibility after Proposal 2009-22

Megan Zingarelli — Thu, 11 Apr 2013 17:41:31 +0000

The United States is often called the land of opportunity. In many ways it has proven so, but this is not always the case. International student athletes are not granted equitable treatment with their American peers under National Collegiate Athletic Association (NCAA) amateurism rules. While the NCAA bylaws, through Proposal 2009-22, grant international student athletes the right to participate on professional teams, the proposal does not give the athletes the ability to truly exercise that right. Through the lens of Turkish basketball player Enes Kanter, this Note explores amendments to NCAA bylaws that are necessary for the NCAA to promote such an opportunity for international student athletes. The value of education and the acknowledgment of cultural differences require further steps to protect these athletes. This Note advocates for the recognition of education expenses as necessary and for a “pay-back” provision for excess compensation to protect athletes from issues arising from cultural and language differences.

Towards a Declaratory School of Government Recognition

Megan Zingarelli — Thu, 11 Apr 2013 17:41:09 +0000

Recognition of governments has historically been a political matter. Governments could choose to recognize or not to recognize any other government, free from the auspices of international law. However, in the wave of prodemocracy optimism after the dissolution of the Soviet Union, a group of international legal scholars declared the existence of a universal democratic entitlement, which implied that recognition of governments had legal significance. These scholars, known collectively as the Manhattan school, are generally regarded as having vastly overstated the legal implications of the shift toward democratic governance. While it is true that there is scant evidence of a general democratic entitlement, this Note argues that there is a strong preference against the reversal of democracy. This preference is reflected, in part, in a norm against the recognition of coup regimes that displace democratically elected governments. This norm represents a partial but critical vindication of the Manhattan school’s assertion that a government’s legality depends on its democratic character. It also has important theoretical implications, as recognition of governments is no longer merely political, but rather must reflect governments’ underlying legal status. This shift aligns the theory of recognition of governments with the declaratory school of state recognition, in which recognition is said to merely “declare” the underlying legal status of the state. This Note proposes that the UN Credentials Committee, which already adheres to the principle of nonrecognition of coup regimes that displace democratic governments, formally adopt this norm as a rule guiding representation disputes before the United Nations.

First Amendment and “Foreign-Controlled” U.S. Corporations: Why Congress Ought to Affirm Domestic Subsidiaries’ Corporate Political-Speech Rights

Megan Zingarelli — Thu, 11 Apr 2013 17:40:39 +0000

Political spending in the modern-day, prolonged election cycle continues to exceed historic proportions. With money equated to speech, whether the First Amendment entitles certain contributors to engage in this political activity remains an open question. Unlike France and Israel, which prohibit corporate contributions, and Canada and the United Kingdom, which turn to public funding for campaign finance, the United States has pushed candidates to rely on political party contributions, personal wealth, and the generosity of individuals, political action committees, and corporations. Concerns about corporate and foreign influence on politics have been especially salient during this lengthy economic downturn, as shown by the prominence of the nationwide Occupy Wall Street protests. Those who trumpet restrictions on so-called “foreign” corporate political influence are concerned with infringements on U.S. sovereign independence and citizens’ political self-determination. This Note responds to the uproar against corporate and foreign influence in the wake of Citizens United v. Federal Election Commission, arguing the debate in Congress and, thus, the law, ought to distinguish between domestic subsidiaries of foreign corporations and foreign corporations themselves. Under the current legal regime, no distinction between U.S. corporations and domestic subsidiaries exists; despite proposed legislation to the contrary, it should remain this way.

Hate Speech and Persecution: A Contextual Approach

Megan Zingarelli — Thu, 11 Apr 2013 17:39:58 +0000

Scholarly work on atrocity-speech law has focused almost exclusively on incitement to genocide. But case law has established liability for a different speech offense: persecution as a crime against humanity (CAH). The lack of scholarship regarding this crime is puzzling given a split between the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia on the issue of whether hate speech alone can serve as an actus reus for CAH-persecution. This Article fills the gap in the literature by analyzing the split between the two tribunals and concluding that hate speech alone may be the basis for CAH- persecution charges. First, this is consistent with precedent going as far back as the Nuremberg trials. Second, it takes into account the CAH requirement that the speech be uttered as part of a widespread or systematic attack against a civilian population. Third, the defendant must be aware that his speech is uttered as part of that attack. As a result, it is problematic to consider “hate speech” in a vacuum. Unlike incitement to genocide, an inchoate crime not necessarily involving speech and simultaneous mass violence, hate speech as persecution must be legally linked to contemporaneous violence in a context in which the marketplace of ideas is shut down and speech thus loses its democracy and self-actualization benefits. Thus, it should ordinarily satisfy the CAH-persecution actus reus requirement. Nevertheless, given the strictly verbal conduct, and possible impingements on quasi-legitimate freedom of expression, isolated or sporadic hate speech, as well as hate speech uttered as part of incipient, low-level, or geographically removed chapeau violence, may not qualify as the actus reus of CAH-persecution. The Article ultimately makes the point that context is crucial and case-by-case analysis should always be required.

Stateless in the United States: Current Reality and a Future Prediction

Megan Zingarelli — Thu, 11 Apr 2013 17:39:07 +0000

Statelessness exists in the United States—a fact that should be of concern to advocates of strict immigration control as well as those who favor a more welcoming policy. The predominant reasons for statelessness include the presence of individuals who are unable to prove their nationality and the failure of their countries of origin to recognize them as citizens. Migrants with unclear nationality, already a problem for the United States, obstruct efforts to control immigration by the deportation of unauthorized aliens. These existing problems of national identity will increase exponentially if birthright citizenship in the United States is amended to exclude the children of undocumented aliens. Contrary to common assumptions, proposed changes to U.S. citizenship law would exacerbate statelessness into the next generation when no fallback nationality is available.

Lexis Nexus Complexus: Comparative Contract Law and International Accounting Collide in the IASB–FASB Revenue Recognition Exposure Draft

Megan Zingarelli — Thu, 11 Apr 2013 17:38:36 +0000

U.S. and international accounting-standard setters plan to launch a new, global revenue accounting standard, Revenue from Contracts with Customers, in 2013. Poised at the nexus of comparative contract law and international accounting, the proposal’s contract-based revenue recognition model creates new legal risks and opportunities for accountants, lawyers, clients, and financial statement users. Despite its focus on legally enforceable contracts, the proposed standard was drafted without input from the legal community. This Article models the proposal’s complex contract-analysis process, demonstrating that its revenue outcomes may vary materially because of seemingly minor interjurisdictional differences in law applicable to “open-price” contracts; offers practice pointers for attorneys, accountants, and auditors; recommends changes to the proposal, including the substitution of self-enforcing Nash equilibria for legally enforceable contracts; and encourages more collaboration between the legal and accounting professions in the joint deployment of legal and accounting expertise for better value creation, value allocation, and risk mitigation.

Beyond Regulation: A Comparative Look at State-Centric Corporate Social Responsibility and the Law in China

Megan Zingarelli — Thu, 11 Apr 2013 17:37:02 +0000

Corporate social responsibility (CSR) is often understood as the voluntary actions firms take beyond legal compliance. However, in recent years, governments around the world have also begun to actively promote CSR, reflecting broader governance trends that embrace “soft law,” quasi-voluntary standards, and other novel incentives to move companies toward and beyond minimum regulatory goals. Comparative legal scholarship has only recently begun to consider the intersections of these mechanisms with positive law, formal institutions, and traditional regulatory enforcement structures. The adoption of these policies in historically weak regulatory environments raises puzzling questions about their motivation, scope, and potential.

As a leader among emerging markets, China offers an important context in which to consider state CSR policies and the role of alternative regulatory tools in legal implementation. This Article adopts a comparative perspective to examine how national and subnational governments in China advance CSR. Based on primary interview data, it develops a state-centric model of CSR that contrasts with the market-based model adopted by U.S. governments and the relational model advanced by EU member states. The Article concludes by considering the implications of state-centric CSR initiatives for norm creation and legal implementation.

Feb. 8, 2013 Lucius Burch Memorial Lecture and The Role of Non-State Actors in International Law Symposium

johnsolf — Tue, 12 Feb 2013 20:36:58 +0000

The Point of a Points System: Attracting Highly Skilled Immigrants the United States Needs and Ensuring Their Success

whipplee — Tue, 12 Feb 2013 19:34:27 +0000

In a globalizing world, labor is an increasingly mobile and competitive resource. Responding to this changing labor market, countries like Canada, the United Kingdom, and Australia have adopted points systems with the goal of attracting talented, highly skilled immigrants. In the United States, however, much of the national focus on immigration remains on deterring illegal immigration rather than attracting immigrants that the United States needs to remain competitive in a globalized world. But attracting skilled immigrants is only one ingredient to a successful points system; a country must also ensure those immigrants are successful and use their talents to the fullest potential post-entry. This Note proposes the United States enact its own points system, but with a narrower goal than other systems: attracting highly skilled immigrants, while ensuring their success in the United States.