THE U.S. CONSTITUTION AND INTERNATIONAL AGREEMENTS∶MAKING SENSE OF TREATIES AND CONGRESSIONAL EXECUTIVE AGREEMENTS

라프라드 중앙대학교 법학연구원 2011 法學論文集 Vol.35 No.2

Treaties and congressional executive agreements are two methods by which the United States enters into binding international agreements. Each instrument has been used since the earliest days of the Constitution, but there is confusion concerning the substantive appropriateness of each form. This confusion is compounded by the fact that the text of the U.S. Constitution is silent regarding the substantive differences between the two instruments. Another consideration is the fact that there is debate concerning a modern movement advocating the interchangeability of congressional executive agreements for treaties. Despite the confusion, textual silence, and scholarly debate, the historical record indicates a consistency in use. This article shows that the choice of instrument (treaty or congressional executive agreement) is fairly predictable based on the subject matter or topic of the proposed agreement. This predictability results from consistent historical practice and modern preferences. In examining each form, this article reviews the relevant procedures and history behind each instrument. Because there is no clear rule concerning the proper subject matter for each method, this article also looks at the particular patterns of usage and explore the defining moments that have shaped the modern usage of each form. By understanding the various facets of treaties and congressional executive agreements is an essential element in making sense of the various instruments used by the United States to make international agreements.

SOCIAL ENTERPRISE IN THE UNITED STATES: FITTING A SQUARE PEG INTO A ROUND HOLE

라프라드 부산대학교 법학연구소 2015 법학연구 Vol.56 No.3

The social enterprise movement did not start in a vacuum, but is the latest iteration of business trying to benefit society. In a historical context, it follows in the footsteps of corporate philanthropy and corporate social responsibility. But unlike those movements, social enterprise goes farther by attempting to blend and give equal weight to both philanthropy and profit. This dual mission is contrary to the traditional corporate notion of shareholder wealth maximization, and is an obstacle to the future viability and success of social enterprise. As a result, new corporate entity forms have been developed to help social entrepreneurs achieve their dual purpose goals of philanthropy and profit. The purpose of this article is track the development of social enterprise, to understand why the preexisting legal entity forms are outdated, and to explore the different entity options that social enterprises have to choose from. In doing this, the goal is to provide the reader with a better contextual understanding of the social enterprise movement, its limitations, and how the legal community and government legislatures are trying to help out.

BELMONT TO MEDELLIN: THE “EXECUTIVE EXCEPTION” TO LAWMAKING

라프라드 부산대학교 법학연구소 2011 법학연구 Vol.52 No.3

Sole executive agreements are made pursuant to the President’s independent constitutional authority outside of the Treaty Clause and textual support for this authority is found in four separate provisions within Article II of the Constitution. There is little doubt that the President has the constitutional authority to enter into these types of agreements, however, there is considerable debate concerning the scope of that authority. One problem with sole executive agreements is the fact that the President is capable of unilaterally creating law that can displace contradicting state law. The ability of the President to do this is inconsistent with the separation of powers doctrine which states that the President is not a lawmaker. Unlike treaties and congressional executive agreements, there is no structural mechanism restricting presidential authority concerning sole executive agreements. In an attempt to balance the President’s independent constitutional authority to enter into sole executive agreements and the separation of powers doctrine, the Supreme Court has created an exception to the general rule that the President is not a lawmaker. This exception I have termed the “Executive exception” to lawmaking. The Executive exception evolved and has been refined during the past seventy years or so through a series of cases called the settlement cases. The settlement cases are comprised of United States v. Belmont, United States v. Pink, Dames & Moore v. Regan, and American Insurance Association v. Garamendi. The fifth case, Medellin v. Texas, was not a settlement case per se, but it was the last in the line to discuss the issue. This article takes a different view of these cases. Rather than seeing the cases as half-hazard or incongruent group of decisions, this article asserts that the cases represent a systematic refinement of the Executive exception culminating in Medellin v. Texas. In creating this principle, the Supreme Court has been very careful and has tried to keep the idea confined to a specific set of circumstances expanding it incrementally when the need arises. In doing so, the Court has maintained a delicate balance between the President’s independent constitutional authority and the separation of powers.

The “Natural -Born Citizen” Clause and Why Ted Cruz is Not Eligible to Be President of the United States

라프라드 부산대학교 법학연구소 2016 법학연구 Vol.57 No.4

The United States Constitution requires that the President of the United States be a “natural-born citizen” of the United States. Although Senator Rafael Edward (“Ted”) Cruz dropped out of the Presidential race in May of 2016, his eligibility to be President remains questionable because of his birth in Calgary, Alberta Canada to a U.S. Citizen mother and non-citizen father. In other wards, was Senator Cruz a “natural-born citizen”? To answer that, one has to uncover the historical meaning of “natural-born citizen” and its more modern interpretations. Unfortunately, there is no consensus as to its precise meaning and the U.S. Supreme Court has not directly confronted the issue. I conclude that Senator Ted Cruz is not eligible to be President of the United States. To reach this conclusion, I explore British common and Parliamentary law as it was familiar to Framers of the U.S. Constitution in 1787. Of primary importance is the British common law concept of jus soli, which means “right of soil” as the basis of British citizenship. I also look at the drafting and adoption of the U.S. Constitution in light of prevailing British law and subsequent attempts at naturalization legislation by the U.S. Congress. Finally, I discuss the Fourteenth Amendment to the U.S. Constitution and relevant U.S. Supreme Court cases in order to glean further understanding of the “natural-born citizen” clause.

Real Property Transactions and Why Korea Needs a U.S. Styled Escrow System

라프라드 경희대학교 법학연구소 2012 경희법학 Vol.47 No.3

A standard residential real property sales transaction is an exchange that requires the transfer of documents and monies. The exchange of monies for the legal documents of ownership is a nearly simultaneous exchange and is very risky because each party is giving up something of great value (money for real property) without the assurances that the other party will perform as promised. To reduce the risk and avoid fraud, U.S. real property transactions use a neutral third party called an escrow agent. The escrow agent orchestrates the transaction process and ensures that the transaction proceeds according to the conditions established by the parties. In contrast, the Korean real property transaction process usually takes place directly between the buyer and the seller. However, there is no mechanism to assure that the seller will show up at the land registry to transfer ownership once the monies are in the seller’s account. In a lease transaction, the tenant gives the landlord/owner a large deposit, but without a guarantee that the landlord/owner will promptly return the money when the lease expires. The U.S. system requires that all lease deposits be held in escrow or a trust account during the duration of the lease to ensure that the deposit is promptly returned. * Assistant Professor of Law, Pusan National University School of Law. Although Korea currently uses escrow for electronic commerce and project financing, this article recommends the use of a U.S. styled escrow system to mitigate the inherent risks associated with Korean residential sales and lease transaction processes. This article explains the role of escrow agents and the advantages the system has. The article also argues that Korean judicial scriveners are uniquely positioned to assume the duties of escrow agents which will give these individuals added job security given the changes in the legal environment. Additionally, real estate agents may likewise assume some responsibilities concerning tenant deposits.

Termination of Treaties and Executive Agreements under the U.S. Constitution

라프라드 단국대학교 법학연구소 2012 법학논총 Vol.36 No.2

미국이 구속력 있는 국제적인 합의를 하기 위해 사용하는 방법으로 3가지를 들 수 있다: 조약, 의회의 수권에 의한 행정협정, 대통령 독자의 권능에의한 행정협정. 각각의 방법은 각각의 헌법상 수권에 의한 것이고, 그 효력에 있어서는 연방법과 같은 효력을 가진다. 그런데, 미국헌법은 이 합의들을어떻게 종료하는지에 대해서는 규정하고 있지 않다. 합의의 종료의 관한 논의의 초점은 과연 대통령이 일방적으로 종료할 수 있는지, 아니면 상원 또는 의회가 반드시 관여해야 하는 지에 있다고 하겠다. 이 논의에 관해Goldwater v. Carter 판례에서 미국대법원의 상대적 다수의견(plurality opinion)은 사법심사의 대상이 될 수 없는 정치적 문제라고 하면서 소각하 판결을내린 바 있다. 관련판례가 부재하다는 사실을 포함한 법조 및 학계의 견해는 대통령에게유리해 보이나. 생각컨대 결정적인 요소는 대부분의 학자들과 논객들에 의한 기존의 틀에 박힌 논의에 있다고 하기보다는 대통령의 기능적 측면에 있다고 하겠다. 즉 상원과 의회는 그들이 원한다면, 대통령의 조치들에 제한을가할 수 있다. 이러한 잠재적인 권한이 조약을 논할 때 종종 간과되고는 한다. 본 논문은 구속력 있는 합의를 대통령이 일방적으로 종료시킬 수 있는 지에 관한 찬반논의에 중점을 두고자 하며 미국이 체결하는 국제적 합의의 종류, 각각의 합의에 이르는 과정, 대통령이 일방적으로 그 합의들을 종료할수 있는지에 대한 찬반논의, 미국헌법상 국제합의가 가지는 이중적 속성, 기능적 요소들 및 대통령에 의한 일방적 종료에 대한 견제방법에 대해 살펴보

CLINICAL LAW PROGRAMS AT U.S. LAW SCHOOLS

라프라드 부산대학교 법학연구소 2012 법학연구 Vol.53 No.2

The purpose this article is to give an overview of some of the important features of U.S. clinical law programs as a starting point for those Korean law schools that may be considering their own clinical law programs. This is not a manual, but an outline of some of the common features and potential concerns that should be considered when starting a clinical program. Law school clinics and legal clinical education in general, provide law school students an opportunity to combine classroom study with actual practice in a real life setting. Students gain practical experience while working under the close supervision and tutelage of a law professor and/or clinical attorney who guides the student step by step. Students work with real people on real legal problems and are able to do so with limited practice authority granted by the local bar. This limited practice ability, the ability to practice law in a limited highly supervised setting, is a critical feature that makes law clinics attractive to students. Law schools in the United States frequently offer a number of clinical law programs for its participating law students, with some universities offering over thirty choices. Although there are a large variety of courses offered, there are some important features common to all clinics, including staffing, course design, enrollment restrictions, and eligibility. There is no requirement as to what specific clinical programs law schools have to offer, but there are a several types of clinics that are popular among the law schools, including child advocacy, environment, and prosecution and defense to name a few, that may be illustrative for Korean purposes. Finally, this article looks at several factors and concerns that should be addressed when considering the start-up and operation of a law clinic. For example, the clinic’s goals, available resources, and ethical safeguards have to assessed, as well as the student’s ability to practice law, the clinic’s political autonomy, and staffing concerns have to be addressed.

Real Property Transactions and Why Korea Needs a U.S. Styled Escrow System

Steven M. LaPrade(스티븐 라프라드) 경희법학연구소 2012 경희법학 Vol.47 No.3