IP - Lepard

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Author:
CecilySweet
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217003
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IP - Lepard
Updated:
2013-05-01 11:33:02
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  1. Opinio Juris
    sense of legal obligation
  2. Customary State law =
    uniform state practice + sense of legal obligation
  3. Concept of customary law has its origins in
    civil law systems
  4. persistent objector doctrine
    even though mass acceptance of an intl law, if a govt has persistently objected to this from day 1, they can object to this intl rule (theory but never evidenced)
  5. Peremptory customary norms
    cts recognized some rules that are so important that they can never be violated

    SUPERMAN NORMS

    VCLT - Art. 54 = any T that conflicts w a norm of just cogens = void
  6. VCLT - Art. 54 = any T that conflicts w a norm of just cogens =
    void
  7. Jus Cogens
    peremptory law
  8. Paquete Habana; SCOTUS said: Intl law is part of
    • OUR LAW
    • it can bind states even when there is no relevant T
  9. does customary intl law have to be unanimous
    no
  10. can customary law change and evolve over time
    yes
  11. Foundation of customary intl norm:
    combination of consistent state practice and ethics
  12. Alien Torts Statute 28 USC 1350 - establishes original jurisdiction over
    any civil action by an alien for a tort only, committed in violation of the law of nations or a T of the US
  13. Law of nations =
    customary intl law
  14. law of nations may be ascertained by consulting the works of
    • jurists, writing professedly on public law; or
    • by the general usage and practice of nations; or
    • judicial decisions recognizing and enforcing the law Filartiga
  15. Is the law of nations an integral part of our common law system
    yes
  16. do violations of a customary norm defeat the customary norm
    no
  17. A settled rule of intl law =
    by the general assent of civilized nations
  18. Evidence of consistent state practice against torture
    UN Charter and Universal Declaration of Human Rights
  19. Universal declaration on human rights
    general assembly resolutoin; used in many nations' constitutions, merely recommendations to member states they are not legally binding themselves; Universal declaration = evidence of a belief by states that they believe torture is not permitted
  20. Kiobel
    ATS can NOT be applied to torts that occurred outside the US
  21. Sosa v. Alvarez

    a human rights under customary intl law must be 
    widely recognized and defined w great precision
  22. UN Convention against torture
    • (1) any act by which severe pain or suffering (physical or mental) is
    • (2) intentionally inflicted
    • (3) to obtain from him or a 3P info or a confession punishing him for an act he or a 3P has committed, OR
    • (4) intimidating/coercing him or for any reason based on discrimination
    • (5) when such pain/suffering is inflicted by the instigation of or w the consent/acquiesence of
    • (6)a public official or person acting in official capacity
  23. Torture Victims Protection Act
    • provides for a civil action against certain torturers but P must exhaust remedies in the place where the cause of action arose;
    • 10 year SoL
    • torturer under authority/color of law shall be liable to damages to that individual
  24. Federal Courts have SMJ through...
    • 1331 - fed question
    • 1332 diversity
    • 1350 ATS
  25. Basis for PJ
    • presence w/n the state (Filartiga)
    • consent of ∆ (forum selection clause in K)
    • under long-arm statutes (minimum contacts + constitutional)
    • In rem (PJ over someone owning property here, can be sued at least involving the property)
  26. Rules on a Court's discretion not to hear a case over which it has jurisdiction
    • Forum non conveniens
    • political question doctrine
    • act of state doctrine
    • Comity
    • other doctrines
  27. Act of State doctrine
    every sovereign state is bound to respect the independence of every other sovereign state, and the Cts wont sit in judgment of another govts acts w/n its own territory
  28. Comity
    legal reciprocity; one jurisdiction will extend certain courtesies to other nations (courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction
  29. Basic conflict of laws concepts:
    procedural rules; substantive law; internal law/local law
    • procedural rules: a forum ct in a form state will apply its own procedural rules
    • substantive law: forum ct may apply its own substantive law OR that of another state w an interest in the dispute
    • internal law/local law: refers to all of a state's substantive law other than its conflict of law rules
  30. lex loci deliciti
    law of the place where the tort was committed
  31. Restatement 2 of Foreign Relations adopted what rule to decide which law to use
    Most significant relationship standard
  32. Most significant relationship standard:
    considers needs of interstate and intl systems; relevant policies of the forum state and the other interested states; basic policies underlying that field of law; certainty, predictability, uniformity
  33. NE has adopted (conflict of laws)
    R2CL §146: local law of the state where the injury has occurred unless some other state has a more significant relationship to the occurrence and the parties
  34. Other state cts under the full faith and credit clause of the US constitution - US states
    must recognize and enforce a judgment duly rendered in another US state ct (not applicable to foreign cts - but in general do recognize them based on the principle of comity)

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