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Volume I Issue 4 (October 2014)

Volume I Issue 4 (October 2014)

1. When Terror and Journalism Collide: A Critique of the UK's Overreach of Power in the Name of National Security by Kayla Bell of Emory University School of Law, at 891-931

AbstractA routine layover at London’s Heathrow Airport could become the driving force behind changing a country’s anti-terror laws that have been in place for more than a decade. On August 18, 2013, authorities detained David Miranda, who was assisting The Guardian newspaper in reporting on Edward Snowden’s controversial National Security Administration leaks. Authorities held Miranda for nine hours and confiscated his source material under authority of the Terrorism Act 2000. Subsequent U.K. court decisions found the detention to be lawful and in accordance with international norms of freedom of expression. However, a few years earlier, a similar case arose in the U.K. that also pitted the Terrorism Act against a journalist’s material. In that case, U.K. courts also found no breach of freedom of expression, but the European Court of Human Rights wholly disagreed. The European court’s decision ultimately led to the U.K. changing parts of its Terrorism Act.

This article argues that, in light of Miranda’s recent detention, the U.K. needs to undertake further changes to its Terrorism Act in order to be compatible with its commitment to international norms of freedom of expression. This article demonstrates how the U.K. domestic courts have routinely been unable or unwilling to acknowledge abuse of freedom of expression in the name of national security and will offer recommendations on how the U.K. can tighten its terror laws to be more compliant with the fundamental right of free speech. 

Keywords: Arts and Entertainment, Communications Law, Human Rights Law, International Law, Media Law, Anti Terrorism. 

2. Taking the Law of Employer Vicarious Liability for Sexual Harassment Seriously: Some Lessons from South Africa by Justin A. Behravesh of California Western School of Law, at 932-967  

Abstract. This article provides unique critical analysis of the law of employer vicarious liability for sexual harassment in the United States, in wake of the United States Supreme Court's June 2013 decision of Vance v. Ball State University.  The Vance decision held that vicarious liability for sexual harassment is only triggered when the harassing party has the power to take tangible employment action against the victim of the harassment.  By arguing that the decision in Vance will ultimately have a devastating effect on working women in the United States, I turn to comparative international legal analysis for a proposed solution to the problem created by the Vance Court. Using South African law as a model framework, I argue that employer vicarious liability for sexual harassment by an employee should be triggered based on policy concerns, not arbitrary definitions of what constitutes a “supervisor.”  

Keywords: Civil Rights and Discrimination, Employment Law, Sexual Harassment, Comparative Law, Women's Issue


The growing concept of financial institutions operating as active cross-border “tax intermediaries” is one of the underlying principles for more aggressive and multinational legislation; however, there is the potential for substantial ramifications and externalities, both in the legal and economic arenas, that may derive from FATCA and subsequent legislation. Pursuant to this determination that FFIs are being utilized and called upon to implement more effective automated tax information exchanges with domestic and international tax authorities, the issue for underdeveloped Caribbean nations is finding a method to operate in the most cost effective manner without violating domestic laws and existing treaties. This can also be beneficial towards maintaining some form of economic sovereignty. The most optimal method in doing so is identifying the extent that existing treaties and/or agreements provide guidance as to how FFIs can operate in an automated information exchange because of the colossal implementation and operational information technology costs that are associated with complex compliance reporting of private data. Once potential problems are identified, the most logical step is to determine how to enter an IGA that promotes economic stability, privacy considerations, compliance cost avoidance, and mitigating any business disruptions that can potentially exceed any penalty or fine under FATCA. The Caribbean nations have demonstrated a more sophisticated and effective cross-jurisdictional compliance platform than prevailing perspective of their financial services regulatory scheme; however, the implementation of FATCA is the most pervasive and imposing legislative act yet for tax evasion and the ability to utilize the IGA system for preventive measures in all facets of compliance is most practical in considering this emerging and early phase of FATCA’s unilateral rather than bilateral approach.

Keywords: Banking and Finance, Bankruptcy Law, Consumer Protection Law, Contract Law, Public Law and Legal Theory, Secured Transactions, Tax Law.  

4. Legal Ethics in Finland: Two Codes of Conduct for a Two Class Legal Practice System by Stefan Kirchner of University of Lapland, Finland, at 992-1010

Abstract. Understanding the regulation of attorney behavior in Finland is of relevance to attorneys who come into contact with Finnish companies and their attorneys. Finland’s legal and political history make it potentially interesting for lawmakers in the Baltic states as well. Finland has two types of lawyers, lakimiehet (singular: lakimies), who consult clients, and asianajajat (singular: asianajaja), who both consult clients and represent them in court. Access to the former profession is easier and requires only a master’s degree in law while in order to become an asianajaja, a lakimies has to have several years of work experience and pass an ethics test. For each set of lawyers exists a separate code of conduct. While the rules applicable to lakimiehet fit on a single page, the conduct of asianajajat is regulated in far more detail. This article describes the expectations Finnish law has towards the conduct of both types of lawyers against the backdrop of the specific legal system of the Nordic nation. Both the Code of Conduct for asianajajat and the Code of Conduct for lakimiehet are dealt with in relation to the rules contained therein. In a next step, the article deals with the way legal ethics are taught. Here emphasis is given to the importance of practical experiences to be provided for students and the need to not only learn but to live ethics and the role practicing attorneys can play in this regard.

Keywords: Lawyer's Code, Foreign Law, Law and Ethics, Legal Profession. 

5. No Gaiety Here: The Plight of Undocumented LGBT Youth in America by Eviana Englert of Vermont Law School, at 1011-1044

Abstract. At least 267,000 undocumented Lesbian, Gay, Bisexual, and Transgender (LGBT) adults currently live in the United States. This figure does not include those undocumented LGBT immigrants under the age of eighteen. Placing these youth in immigration limbo only compounds the high rates of violence at home, familial rejection, and homelessness that LGBT-identified youth already face as compared to heterosexual and cisgender children. This article discusses proposed immigration reform that passed the United States Senate last year—and what it does to further the progress of LGBT youth advocacy, whom it helps, and whom it leaves unprotected. In addition, this paper contains a practical component addressing the unique difficulties confronting undocumented LGBT youth such as establishing a new immigration court system specific to LGBT youth, establishing better detention facility standard-operating procedures through investigative regulations and enhanced consequences, and increasing federal funding for comprehensive training and oversight of legal advocates.

Keywords: LGBT Rights, Migration Reform, Gay Rights, Citizenship, Sexual Discrimination, Civil Rights. 

Comment

6. The Urban Situation: Cities’ Place in Decentralized Government Frameworks by Michael Castle Miller of American University Washington College of Law, at 1047-1066;

Abstract.  The relationship of cities to other subnational governments (e.g., states, provinces, and counties) and to other cities is complex and seemingly in flux.  Traditionally, most cities in decentralized nations have occupied a third-tier status––below the national and state/provincial tiers––and have been more or less on an equal footing with other cities.  More recently decentralized nations, especially in East Asia, have begun changing that status quo by adopting more complex, nuanced, and flexible approaches to cities’ political power.  Perhaps this approach signals a trend in which nation states are repositioning their larger cities in response to those cities’ rising importance in the global political economy.  If such a trend exists, it may also suggest that the nation-state is weakening relative to urban areas and supranational regional governing entities.

This article compares how several developing, emerging market, and former socialist countries’ laws position cities both in relation to other tiers of subnational government and to other cities.  It primarily focuses on the laws of Brazil, Argentina, Chile, Ghana, Senegal, Nigeria, Kenya, India, Pakistan, Nepal, Egypt, Iran, Morocco, China, Vietnam, Philippines, Russia, Poland, and Kazakhstan.

Keywords: local government, administrative law, devolution, regional autonomy.

Interview

7.  Indonesia and International Law: An Interview with Damos Dumoli Agusman, the Secretary to the Directorate General of International Treaties and Legal Affairs of the Indonesian Ministry of Foreign Affairs, at 1067-1075;

Table of Instruments and Cases    1077-1086;  
Index                                                   1087-1093;