Dale Beck Furnish

Aspectos del derecho nacional peruano aplicados en la controversia "La brea y pariñas"

El 22 de agosto de 1969 el gobierno revolucionario del Peru inicio la expropiacion de todas las propiedades peruanas pertenecientes a la International Petroleum Co., subsidiaria en propiedad absoluta de la Standar Oil.

Sorting Out Civil Jurisdiction in Indian Country after Plains Commerce Bank: State Courts and the Judicial Sovereignty of the Navajo Nation

Navajo Tribal Courts Exercise Extensive Civil Jurisdiction ~ Many commentators feel that recent U.S. Supreme Court decisions curtail tribal courts’ jurisdiction over civil lawsuits, even while Congress and the federal Executive encourage Indian autonomy. Plains Commerce Bank v. Long Family Land & Cattle Co. (June, 2008) is the latest in that line of decisions. The article begins by assessing whether the case may have extended the U.S. Supreme Court limitations, and concludes that Plains Commerce Bank wastes its precedent in an extremely narrow holding, changing nothing in existing doctrine. The article then analyzes that Supreme Court doctrine in the context of the Navajo Nation’s tribal courts. Since 1958 the Navajo Nation has developed a strong court system. Prior to 1958, Arizona, New Mexico and Utah state courts exercised jurisdiction over all civil controversies involving Navajo Country. The advent of the Navajo (and other tribes’) courts has given rise to cases confronting the issue of when the states must defer their civil jurisdiction to the tribal courts. The three state courts have differing approaches to what is still a relatively new problem. Notably, Arizona’s Supreme Court has handed down some of the most extreme precedents against the civil jurisdiction of tribal courts, while New Mexico’s Supreme Court takes a balanced approach more considerate of tribal judicial sovereignty. The Navajo Nation Supreme Court, however, has a surer touch than the state courts in dealing with the issue. A series of Navajo opinions beginning in 2003 sets out a reasoned doctrine of assertive tribal court jurisdiction over civil lawsuits, carefully working within the U.S. Supreme Court precedents. The article concludes that the Navajo Nation’s tribal courts will develop a stronger and stronger role in the resolution of civil controversies in the three states its reservation touches, undeterred by anything that the U.S. Supreme Court is likely to decide.

Le fonti del diritto negli Stati Uniti

Where the law comes from is an essential part of any legal system, one that plays a key role in defining it. The conventional wisdom that develops regarding systems and their sources often does not keep up with the dynamics of the systems’ development. The author feels that foreign jurists risk being misled if they believe that the United States’ legal system depends on case law, or jurisprudence in the continental sense, for most of its rules; i.e. that the United States do not have a system with written or concrete sources of law. While a sensitive comparative scholar might once have described the American system as one of conventional or customary law derived from judicial decisions, developments throughout the 20th century had the effect of mitigating this proposition, although many of those developments have not yet made their way into the foreign vision of the United States’ legal system. The author notes the proliferation of written Restatements of American Law promulgated by the American Law Institute since 1932, claiming that they enjoy an authority and derivation approaching that of a Civil Code, albeit with all the essential differences that exist between the two cases. Foreign scholars who intend to understand the law of the United States should consider the Restatements to be a primary source.

Commercial Arbitration Agreements and the Uniform Commercial Code

Arbitration has become very important to the resolution of commercial disputes in the United States. The increasingly rapid growth in the use of commercial arbitration is almost certain to continue. Despite the trend toward judicial acceptance of arbitration, some courts misapply section 2-207 of the Uniform Commercial Code to nullify arbitration provisions in many commercial controversies. This article argues that many of the barriers to greater use of arbitration that courts draw from the Uniform Commercial Code are the result of misguided analysis. It suggests that the Code be amended to assure that courts interpret section 2-207 consistently with federal law governing arbitration in order to facilitate the continued growth of arbitration as a forum for resolving commercial disputes.