Current Law Journal Content
Washington & Lee Law School
Current Law Journal Content
an index to legal periodicals
Arizona Journal of International and Comparative Law
Volume 17, Number 2, Spring 2000
FREE TRADE AND PROTECTIONISM: THE SEMIOTICS OF SEATTLE
This article reveals the hidden agendas in the Battle of Seattle and the Debacle of Davos. The underlying causes of the conflict are nothing more and nothing less than re-enactments of the proverbial battle of the ancients and the moderns or the free traders and the protectionists. This article offers a modest proposal for a resolution of the dispute by reconciling the justifiable concerns of the protestors with the purposes and procedures of the World Trade Organization (WTO). The article traces the history and development of the WTO from its predecessors, the International Trade Organization and the General Agreement on Tariffs and Trade, and provides a brief overview of the structure, purposes, and agreements of the WTO. The article presents arguments for and against free trade and protectionism and examines stated reasons why the protestors seek to dismantle the WTO, which is the primary instrument of free trade. The article focuses attention on myths about the WTO and distinguishes between the myths and realities. The article proposes a resolution of the dispute between free traders and protectionists in order to make better use of the important implementation mechanisms of the WTO. Finally, this article attempts to reconcile the justifiable claims of the protestors with the laudatory aims of the WTO in an attempt to work effectively within the system of free trade made possible by the WTO.
EVOLVING INDIGENOUS LAW: NAVAJO MARRIAGE--CULTURAL TRADITIONS AND MODERN CHALLENGES
Antoinette Sedillo Lopez
This article provides a history of the post-treaty development of Navajo marriage. It traces the development of Navajo marriage law particularly as it affected tribal customary marriages. The Navajo Supreme Court fused elements of Anglo-American traditions and tribal traditions to recognize customary marriages. It places the development of marriage law in the context of the development of tribal courts as well as state and federal recognition of tribal marriages. The article concludes that states and federal governments must continue to allow tribal domestic relations law to evolve by continuing to defer to tribal jurisdiction over domestic relations matters.
LEGAL PROTECTION FOR ALL THE CHILDREN: DUTCH-UNITED STATES COMPARISON OF LESBIAN AND GAY PARENT ADOPTIONS
Nancy G. Maxwell, Astrid A. M. Mattijssen, and Charlene Smith
The purpose of this article is to examine the recent developments concerning same-gender parent adoptions in the United States and the Netherlands, and to compare the different routes these changes have taken. The first section of the article examines the present status of the case law in both countries. It begins with an analysis of the court decisions in the United States, in which case law now makes it legal in numerous states for gays and lesbians to adopt, wither as "co-parents" or as "strangers." The section also includes an analysis of the recent Dutch case before the highest court in the Netherlands, the Hoge Raad, which involves a request for a co-parent adoption by two women who were raising their children together as a family. The next section sets out the current status of Dutch law as it affects gay and lesbian co-parents, and includes present adoption laws, joint parental authority, and registered partnerships. The fourth section examines proposed legislation in the two countries concerning the right of same-gender couples, and homosexual individuals in general, to adopt. The final section is a comparison and analysis of the Dutch and U.S. legal histories concerning same-gender co-parent adoptions. It examines the differences in the two countries' legal systems, the social status of homosexuals, the social acceptance of adoption, and each country's underlying assumptions about family law. The article concludes by pointing out that recognition of same-gender co-parent adoption is in the best interest of the children raised by same-gender couples.
FAILED EFFORTS TO INITIATE THE "MILLENNIUM ROUND" IN SEATTLE: LESSONS FOR FUTURE GLOBAL TRADE NEGOTIATIONS
David A. Gantz
The inability of the members of the World Trade Organization (WTO) to initiate a new "round" of global trade negotiations in Seattle in November 1999 raises questions about how the agendas for such negotiations will be set and how the discussions themselves will be conducted. The author believes that the failure in Seattle has fundamentally changed the rules of the game for future trade liberalization. It will not be possible for the United States, the European Union, and a few other developed nations to set the agenda and impose it on the other 110 WTO members, nor conduct and conclude those negotiations without meaningful participation by the WTO membership at large. Nor is it likely that future negotiations will succeed without the negotiating process becoming more transparent for the labor, environmental, and other non-governmental organizations that have an interest in the outcome and may be in a position to block conclusion of the negotiations if their interests are not taken into account.
I AM WHO I AM, OR AM I? A COMPARISON OF THE EQUAL PROTECTION OF SEXUAL MINORITIES IN CANADIAN AND U.S. COURTS: IMMUTABILITY HAS ONLY FOUND A HOME NORTH OF THE BORDER
Patrick J. Dooley
This Note describes the treatment of sexual minorities in Canadian courts under the Canadian equivalent to the U.S. Constitution's Equal Protection Clause. (The term "sexual minorities" refers to persons whose sexual orientation is other than exclusively heterosexual. This would include gay men, lesbians, transsexuals, and bi-sexual persons. This includes people who have acted on their sexual impulses and those who have same-sex desires or a desire to change their biological sex to match their psychological sexual identity, but have yet to act on those desires.) It then compares this treatment to the equivalent treatment in U.S. courts and explains why Canadian jurisprudence may not help those interested in advancing the equal protection of sexual minorities in the United States. In particular, this Note provides a brief explanation of the history of Canadian and U.S. equal rights jurisprudence. It explores the more important cases dealing with Canadian and U.S. equal protection jurisprudence as applied to sexual minorities, and it also illustrates that the concept of homosexuality as an immutable characteristic has been accepted by Canadian courts while the same concept has been repeatedly rejected by U.S. courts. It then explains why sexual minorities may not want to be labeled immutable by U.S. courts, and, therefore, why Canadian jurisprudence may not be helpful to the advancement of the equal rights of sexual minorities in U.S. courts. Finally, the Note offers some alternatives to the concept of immutability that might be pursued in U.S. courts to advance the civil rights of sexual minorities in the United States.
CASINOS OF THE NEXT MILLENNIUM: A LOOK INTO THE PROPOSED BAN ON INTERNET GAMBLING
Jenna F. Karadbil
This Note examines the legality and wisdom of the proposed ban on Internet gambling. In particular, it explores the applicable federal, state, and international laws across and beyond U.S. borders. It explains why the United States cannot enforce the ban from a technological standpoint and suggests alternative solutions to a complete ban on Internet gambling. The World Wide Web makes visiting an Internet gambling site possible by providing a graphical interface for users to access. Currently, the Internet brings the games to the gamblers. An Internet user can place a wager simply by using a computer and a modem. One can stroll through an Internet casino at their own convenience, sit at a blackjack table, and play with four anonymous individuals. One can then play the slow machines or the roulette wheel, place a sports wager, or buy lottery tickets. However, since 1998, participating in this form of gambling is illegal for anyone in the United States. Thus, Internet casino owners now face fines of up to twenty thousand dollars, four years in prison, or both. On July 23, 1998, the Senate approved the first legislation banning most forms of Internet gambling. Although this first measure failed to reach the House, it was again revived and passed by the Senate in 1999. The Internet Gambling Prohibition Act prohibits the use of wire communications for accepting interstate or foreign wagers. Its main focus is on the gambling "business," however, there are exceptions in which horse racing and lotteries are available online. However, most Internet casinos are located outside the United States and are thus assured of anonymity, tax-free profits, and no regulatory oversight. For $100,000 per year, an Internet casino can obtain a license to operate outside of the United States, thereby escaping the U.S. ban.
PROPERTY RIGHTS IN HUMAN BIOLOGICAL MATERIALS: STUDIES IN SPECIES REPRODUCTION AND BIOMEDICAL TECHNOLOGY
Amy S. Pignatella Cain
Currently, laws in the United States and abroad have been slow in recognizing property rights in human biological materials like sperm, embryos, and cells. The inability of law to keep up with technological advances leads to fear throughout the world concerning the ownership of human biological materials. This Note argues that if human biological materials were considered "property" in the traditional sense, then human beings may not be as fearful of future technological advances pertaining to the human body because they would have ownership rights in their own biological materials. This Note explores the relevant laws and cases concerning property rights in human biological materials. It discusses how courts in the United States and abroad view ownership interests in human reproductive materials and human organs and cells. Furthermore, it discusses how recognition of property rights in human biological materials may ease the fear that human beings feel in confronting new technologies such as human cloning. This Note asserts that recognition of property rights in the human body is necessary to encourage organ donation, to assure greater personal autonomy, to diminish the international market in human body parts, and to diminish fears of the commodification of the human body. Finally, it discusses the procedural implications of recognizing property rights in human biological materials. In particular, this Note argues that recognizing property rights in human biological materials may provide courts with a uniform way to analyze cases concerning disputes over human biological materials. Adopting a property-based approach for dealing with disputes over human biological materials may result in greater predictability and flexibility, enabling people to encourage the advancement of technology without the current fears surrounding the ownership of human biological materials.