The Illinois Business Law Journal

Anchors Aweigh! The U.S. Navy, the U.S. Coast Guard, and Regulating International Shipping on the High Seas

Law students enrolled in a “substantive” criminal procedure course frequently sweat over the intricacies of search and seizure law within contexts familiar to the average land-lubber attorney – the home, the automobile, and the person strolling down the street.  Perhaps some die-hard students will take the time to learn more obscure aspects of the Fourth Amendment such as administrative searches and the law of satellite reconnaissance.  But who really bothers to learn anything about maritime search and seizure law?  The idea of pirates, smugglers, and privateers in the twenty-first century is absurd to most people, including many attorneys.  But, be forewarned!  In the post 9/11 world the men and women in the United States Navy and United States Coast Guard are on call twenty-four hours a day monitoring commercial and private vessels on the high seas.  [1]  They are enforcing regulatory legislation developed by Congress and applicable to all tankers, container ships, and other vessels that are vital links between the United States and other markets around the world.  [2]

EPA Forced To Reconsider Greenhouse Gas Regulation

            A recent United States Supreme Court decision has forced the United States to take a hard look at the worldwide global warming phenomenon, and the U.S.’s contributions thereto. [1] In Massachusetts v. EPA, the Supreme Court ruled the EPA has the authority to regulate carbon dioxide and other greenhouses gases under the Clean Air Act. [2] The EPA had long fought against such a determination on a number of grounds, including that it would run against the Bush administration’s policies toward global warming, and present only a “piecemeal solution” to the worldwide global warming phenomenon. [3]

The Classical Legacy of Admiralty: The Roman Experience (Part Two of a Two-Part Series)

Last month we examined some pre-Roman beginnings of modern admiralty doctrine, starting from pre-history through the Greek city states.  [1]  This month we will continue our study of the classical beginnings of admiralty and maritime law by examining mighty Rome – what its legal system was like, how Rome’s laws evolved and amplified the admiralty that came before them, and most importantly how Rome’s influence on maritime legal matters influenced a wide array of modern doctrines from maritime tort and contract liability to general average.  I highly recommend reviewing my last article, published on February 15, before continuing on.  [2]  This will set the stage for understanding what Rome inherited and what she gave back to the western legal tradition after her downfall.

The Classical Legacy of Admiralty: The Pre-Roman World (Part One of a Two-Part Series)

The classical world, western civilization from the dawn of written history to the fall of the Roman Empire [1] in 476 A.D., [2] was dependant on the arteries of transportation that crisscrossed Europe, the Middle East, and Africa.  Like the modern world, no state existed entirely in a vacuum.  Whether an empire or a city-state lived or died depended largely on its ability to move people and materials efficiently.  What we know today as admiralty and maritime law has its earliest roots in the classical period. [3] This body of law was highly developed in antiquity when compared with other legal subjects, especially considering that many admiralty law doctrines are unchanged from their ancient states.  Studying the state of admiralty in ancient history sheds much light on the reasons why admiralty is the way it is today, and why it differs from other doctrinal areas of law.

The Future of U.S.-Cuban Transportation Law

The story has been told in many different ways, but for the most part it goes something like this: during the height of the Cold War, a newspaper reporter is flying on an Air Force jet interviewing a major general about a new missile designed to keep the Soviets on their side of the Iron Curtain.  During the conversation, the general opens a cigar box full of Cubans, takes one out, and lights it up.  “General,” the newspaper reporter asks, taken aback, “what are you doing?  Isn’t that behavior supporting the illegitimate regime of Cuba?”  The general taps his cigar, gives the newspaper man a wink, and replies, “No son, I consider it to be burning the communist’s crops.”  [1]

For half of the twentieth century and the entirety of the twenty-first, Cuba has been ruled by a communist government under the direction of Fidel Castro.  Castro took power during a communist revolution in 1959 and has led the country under tight communist control.  [2]  United States foreign policy since the end of World War II has been tailored to deny benefit to the nation’s direct enemies and enemies of her allies.  One of these policy decisions has been a complete embargo on trade with Cuba since January of 1959, designed to starve the Cuban economy of American currency.  [3]  The big questions are whether or not the embargo is still warranted in the post-Cold War world where there are no ties between Cuba and terrorism and what will happen in U.S.-Cuban relations once Castro is no longer in power due to incapacity or death.

A Salty Flavor to Your (Formerly) Land-Based Contracts: Norfolk Southern v. Kirby Two Years Later

In 2004 the Supreme Court of the United States handed down a decision that changed the jurisdictional requirements of adjudicating a contract in admiralty.  [1]  This was a major development in an area of the law that is remarkably resistant to change because of the nature of shipping evolves little compared to other technology.  These changes should have had a larger effect in legal circles, because now certain “mixed contracts” that fell in the grey area between admiralty and non-admiralty law were considered to be within admiralty jurisdiction entirely.  [2]  Now certain contracts for the carriage of goods that arrange for transportation over both land and water in a single contract can be adjudicated in certain instances that were impossible before.  [3]  Currently, a shipping container undergoing some catastrophic event in Nevada could be litigated in admiralty as long as the majority of its journey was made on navigable waterways or the high seas.  This counter-intuitive principle deserves a closer look by business attorneys working in the transportation field because now more than ever it is possible that they will brush up against an ancient (and somewhat mystifying) area of law that most lawyers working away from the coastline would never before had encountered.  It is a useful exercise for any lawyer in the field to examine exactly how the jurisdictional requirements for maritime contracts changed, what decisions have been made since, and exactly what it means to their legal practice.

New Life in an Old Method: A Concise Railroad Law Primer

The reality of the modern world is that fuel prices are enormous compared with averages from as little as ten years ago, and it is improbable that they will decline anytime in the near future.  [1]  One consequence of current fuel prices is the higher cost of freight and passenger transportation around the country.  Carriers must adjust their rates according to a confusing maelstrom of fluctuating fuel costs, federal security requirements pertaining to the war on terrorism, and the instability of steady customers in the lukewarm economy.  [2]  A solution may be as simple as looking to a transportation method that is over a century old and is conveniently located in nearly all major American markets – the railroad system.  Railroad freight and passenger services, and the laws that accompany them, are probably unfamiliar to many practicing attorneys because of the multitude of other transportation options that sellers have preferred over the last half century.