Copyright (c) 2009 All rights reserved. http://works.bepress.com/daniel_erskine Recent documents in Daniel H. Erskine Esq. en-us Sun, 12 Jul 2009 20:24:05 PDT 3600 http://works.bepress.com/daniel_erskine/11 http://works.bepress.com/daniel_erskine/11 Sun, 01 Mar 2009 13:54:35 PST Attorney Erskine's Opinion Piece, entitled CASE DISMISSALS | Adopt English rules, was published by the National Law Journal in the February 23, 2009 weekly issue. The piece discusses the ability of English judges to dismiss lawsuits on their own initiative without notice or argument by attorneys for the parties. American judges generally lack a similar ability to summarily dispense with lawsuits absent motion by a litigant. The piece suggests the U.S. judiciary should be given the same ability English jurists possess to dispense with frivolous lawsuits by their own order without the need to consult with litigants. The piece also appears in the March 2, 2009 edition of the International News in the North America and Europe sections under the title Commentary: The British Have a Better Way Daniel H. Erskine Comparative Law http://works.bepress.com/daniel_erskine/10 http://works.bepress.com/daniel_erskine/10 Wed, 05 Mar 2008 06:17:20 PST This article describes the methods utilized by the United States Supreme Court to resolve specific cases involving conflicts between federal constitutional rights, a federal constitutional right and a state constitutional or statutory right, and an international treaty right and a federal constitutional right. Consideration of particular decisions representative of the manner the Court resolves conflicts between rights in the three typologies described above, illustrates how the Court views such conflicts and the rationales employed to resolve apparent conflicting rights. The rationales used by the United States Supreme Court are compared to the South African Constitutional Court's decisions in the Soobramoney, Grootboom, and South African Broadcasting Corp. Ltd. cases. By comparing the reasoning utilized by both courts, this article illustrates distinct judicial methods applied to rationally resolve conflicts between significant individual rights. The comparison serves to permit presentation of a universal method to resolve conflicting fundamental rights for judicial authorities to use across the broad array of legal situations in which conflicts between significant rights occurs. Daniel H. Erskine Comparative Law http://works.bepress.com/daniel_erskine/9 http://works.bepress.com/daniel_erskine/9 Mon, 28 Jan 2008 07:01:10 PST This article explores the calculated use of legal mechanisms to impact national politics and the effect such utilization had on accomplishing deliberate political reform. In answering why political actors use legal procedures as political weapons and whether such use is effective, this paper analyzes two historical examples to illustrate that law as political weapon is extremely successful in accomplishing political change. In the early 1800's, England's King sought to defrock his politically radical heroine Queen Caroline through the parliamentary mechanism of a Bill of Pains and Penalties, which caused a flourish of public criticism and call for political revolution. Public reaction to the legal mechanisms utilized by King resulted in accomplishing the King's goal of quelling revolutionary zeal as well as subsequently radically reforming English parliamentary politics. In a similar vein, the U.S. Congress in 1998 utilized the legal mechanisms of impeachment to unseat President William Jefferson Clinton. Impeachment of President Clinton served the Republican Congress' political interests and resulted in the Republicans obtaining great electoral success. Ultimately, discussion of these two historical epochs advocates future use of legal procedures as political weapons in only certain limited circumstances. Daniel H. Erskine Comparative Law Law as a Political Weapon http://works.bepress.com/daniel_erskine/8 http://works.bepress.com/daniel_erskine/8 Mon, 02 Jul 2007 08:18:01 PDT Federal procedure has embraced the referral of civil cases outside the court system to alternative dispute resolution. This article argues that by utilizing courts to settle cases through civil procedure, courts realize their central role in ensuring the quality of settlements produced through the judicial administration of justice. The purpose of this article is to provide litigants an optional procedure to expeditiously resolve federal personal injury cases. The system proposed in this article incorporates Scottish and Irish civil procedural reforms into a coherent method for judicial officers to declare the settlement value of a personal injury action without referring the case to alternative dispute resolution. Daniel H. Erskine Comparative Law Irish Civil Procedure; Scottish Civil Procedure; US Federal Civil Procedure: Personal Injury http://works.bepress.com/daniel_erskine/7 http://works.bepress.com/daniel_erskine/7 Tue, 13 Mar 2007 14:41:06 PDT In the late 1800's, England's King sought a public trial in the House of Lords to defrock the Queen, which caused a flourish of public criticism and call for political revolution. Public reaction to the legal mechanisms utilized by King, including prosecutions for seditious libel, resulted in substantial political reforms. In a similar vein, the 106th Congress utilized the legal mechanisms of impeachment to unseat President William Jefferson Clinton. Impeachment of President Clinton served the Congress' political interests and resulted in substantial questioning of the American constitutional system. The impeachment also negatively affected the President's political party and the dignity of the office of the President. This paper explores the calculated use of legal mechanisms to impact national politics and the effect such utilization had on accomplishing deliberate political reform. Additionally, this work addresses unintended political improvement! Daniel H. Erskine Comparative Law http://works.bepress.com/daniel_erskine/6 http://works.bepress.com/daniel_erskine/6 Tue, 13 Mar 2007 14:37:30 PDT The article addresses a current WTO dispute between the United States and the European Communities on selected customs matters. The article discusses the necessity for a uniform WTO agreement on trade facilitation, as well as analyzes the apparent inconsistency between the General Agreement on Tariffs and Trade (GATT) Article X's mandate for WTO Members to uniformly, impartially, and reasonably administer municipal customs laws and Article XXIV's allowance of individual members of a customs union to substantially apply common commercial regulations and laws in relation to non-members of the customs union. The article concludes that an agreement between WTO Members on the understanding of the relationship between the obligations of Article X and Article XXIV and the conclusion of a bilateral treaty between the United States and EC concerning harmonization of customs procedures and classification is the solution to the problem presented. Daniel H. Erskine WTO Law http://works.bepress.com/daniel_erskine/5 http://works.bepress.com/daniel_erskine/5 Fri, 10 Nov 2006 14:17:55 PST Daniel H. Erskine Comparative Law http://works.bepress.com/daniel_erskine/4 http://works.bepress.com/daniel_erskine/4 Fri, 10 Nov 2006 14:14:56 PST The Op-Ed discusses the recent dispatch of the rule of double jeopary in England and argues America should adopt similar rationales for rejecting the constitutional rule against double double jeopardy. The piece also advocates for increased awareness by American lawyers of international developments, which inform or comment upon essential United States legal precepts. Daniel H. Erskine Comparative Law http://works.bepress.com/daniel_erskine/3 http://works.bepress.com/daniel_erskine/3 Fri, 10 Nov 2006 14:12:39 PST Satellite radio may be becoming increasingly popular, but there is a little known drawback to the technology: it interferes with many existing wireless networks in place, such as cellular telephone service. This article looks at the legal implications that this interference causes and what kind of liability satellite operators like Sirius and XM Radio may face. Erskine includes a detailed description of how satellite radio operates and in turn describes how this operation causes the disruption. He then moves into a discussion of the current law surrounding the technology and different theories of liability, including tort theories. His approach is straightforward and applies this legal analysis to the actual technology being employed today. Daniel H. Erskine High Technology Law http://works.bepress.com/daniel_erskine/2 http://works.bepress.com/daniel_erskine/2 Fri, 10 Nov 2006 14:08:21 PST The World Trade Organization's Dispute Settlement Body grew out of decades of experience and the frustrations of sovereign nations regarding the method of settling international conflicts between states over tariff and trade issues. This article discusses the historical development of the World Trade Organization's dispute resolution system. The first section analyzes a number of agreements and proposals entered into and put forward during the period from 1947 through 1990. The second section addresses the instrument which inaugurates the World Trade Organization's current dispute settlement procedure and further describes a number of submissions by nations for improvements to the mechanism. Daniel H. Erskine WTO Law