Digital Commons Network^™

A Guide To Resources On Careers In Foreign And International Law, Robert H. Hu

Robert Hu

Law librarians are often asked by law students and even practicing attorneys, “How do I begin a career in foreign and international law practice?” The student or attorney asking this question frequently is seeking recommendations for books, articles, or other information resources on the topic. The same situation arises in a law school’s career services office. For these reasons, a guide has been compiled to help law librarians and placement officials assist individuals who are interested in pursuing career opportunities in foreign and international law practice.

This guide is divided into four sections: Perspectives on International Law Practice, Membership Organizations, …

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

D. Daniel Sokol

Antitrust is an important area of law and policy for most companies in the world. Having divergent rules across antitrust systems means that the same economic behavior may be treated differently depending on the jurisdiction, leading to disparate outcomes in which one jurisdiction finds illegal behavior (but the other does not) when the underlying behavior may be pro-competitive. This disparate set of outcomes creates a world in which the most stringent antitrust system may produce the global standard. As a result, if the antitrust rules applied are too rigid, they threaten to hurt consumers not merely in the jurisdiction where …

Why Didn't The Common Law Follow The Flag?, Christian Burset

Christian Burset

This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British …

To Compare Or Not To Compare? Reading Justice Breyer, Russell A. Miller

Russell A. Miller

Justice Breyer's new book The Court and the World presents a number of productive challenges. First, it provides an opportunity to reflect generally on extra-judicial scholarly activities. Second, it is a major and important - but also troubling - contribution to debates about comparative law broadly, and the opening of domestic constitutional regimes to external law and legal phenomena more specifically. I begin by suggesting a critique of the first of these points. These are merely some thoughts on the implications of extra-judicial scholarship. The greater portion of this essay, however, is devoted to a reading of Justice Breyer's book, …

Is The New York Times "Actual Malice" Standard Really Necessary? A Comparative Perspective, Russell L. Weaver, Geoffrey Bennett

Russell L. Weaver

No abstract provided.

Lying And Lawyering: Contrasting American And Jewish Law, Steven H. Resnicoff

Steven Resnicoff

No abstract provided.

El Fideicomiso En América Latina: Reflexiones Para La Comparación Jurídica, Vanessa Villanueva Collao

Vanessa Villanueva Collao

No abstract provided.

Proportionality Review In Administrative Law, Jud Mathews

Jud Mathews

At the most basic level, the principle of proportionality captures the common-sensical proposition that, when the government acts, the means it chooses should be well-adapted to achieve the ends it is pursuing. The proportionality principle is an admonition, as German administrative law scholar Fritz Fleiner famously wrote many decades ago, that “the police should not shoot at sparrows with cannons”. The use of proportionality review in constitutional and international law has received ample attention from scholars in recent years, but less has been said about proportionality’s role within administrative law. This piece suggest that we can understand the differences in …

The French Prosecutor As Judge. The Carpenter’S Mistake?, Mathilde Cohen

Mathilde Cohen

Lawyers Without Borders, Catherine A. Rogers

Catherine Rogers

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Arbitral Adjudication: A Comparative Assessment Of Its Remedial And Substantive Status In Transnational Commerce, Thomas E. Carbonneau

Thomas Carbonneau

With the growth of international trade, arbitration has emerged as the preferred remedy for disputes in private international commerce. Its adjudicatory features respond well to the sui generis dispute resolution needs of international commercial contracts. Most significantly, an arbitration agreement acts as an elaborate choice-of-forum clause. It allows the parties to satisfy their need for a predictable and effective dispute resolution process by creating a more realistic and workable framework that supersedes the fundamentally parochial alternative proffered by national legal systems. The party autonomy principle that underlies arbitration gives the contracting parties the power to fashion a remedial process tailored …

The Evolution Of Chinese Merger Notification Guidelines: A Work In Progress Integrating Global Consensus And Domestic Imperatives, Susan Beth Farmer

Susan Beth Farmer

China is among the most recent entrants into global competition enforcement, having adopted the first competition law of general application, the Anti-Monopoly Law (AML) after more than a decade of drafting. The AML and Merger Notification Thresholds, rules issued by decree of the State Council, became effective on August 3, 2008. Both the law and the guidelines were subject to public review and comment, and went through a number of drafts before final adoption.

This article is a comprehensive comparison of merger standards across jurisdictions, with particular focus on the evolution of merger regulation in China. It comprises six parts; …

Resolving Competition Related Disputes Under The Aml: Theory & Practice, Susan Beth Farmer

Susan Beth Farmer

This presentation was given at the European China Law Studies 2014 Conference, Making, Enforcing and Accessing the Law, in Hong Kong. The presentation addresses the Chinese Anti-Monopoly Law (AML), the MOFCOMM, NDRC, and SAIC, and litigation before the Supreme People's Court.

The Role Of Comparative Law In Shaping Corporate Statutory Reforms, Marco Ventoruzzo

Marco Ventoruzzo

This Essay discusses how comparative law played and plays a role in the statutory development of corporate laws. The influence of laws of other systems on the development of statutory law is common, explicit, and represents a tradition that accompanied legal reforms since the very beginning of the development of legislation. Focusing on modern corporate law, I argue (but the argument could be extended to many other legal fields) that it is necessary to distinguish two basic ways in which comparative law influences legal reforms in one particular jurisdiction. The first one is through regulatory competition among different systems. In …

Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow

M. C. Mirow

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …

Life In The Law-Thick World: The Legal Resource Landscape For Ordinary Americans, Gillian K. Hadfield, Jamie Heine

Gillian K Hadfield

Insuring Landslides: America’S Uninsured Natural Catastrophes, Christopher French

Christopher C. French

Comparative, Global And Transnational Constitutionalism: The Emergence Of A Transnational Legal-Pluralist Order, Peer Zumbansen

Peer Zumbansen

Comparative lawyers have for more than one-hundred years sought to increase the understanding of 'foreign' legal orders and regulatory systems. Despite some never fully resolved methodological questions, great advances have been made in the comparative study of different regulatory areas both in 'private' (contract, tort, corporate, labour) and 'public' law (administrative law, environmental law). Comparative constitutional law [CCL] has emerged as a field with particular significance. Born in the context of a politically extremely divided world after the Second World War, CCL has undergone tremendous change in an economically fast-integrating world since the late 1980s. The distinction between 'liberal' and …

Transnational Comparisons: Theory And Practice Of Comparative Law As A Critique Of Global Governance, Peer Zumbansen

Peer Zumbansen

A project seeking to assert and contrast the ‘practice’ of comparative law in distinction from the well-known and longstanding theoretical critique of the field is itself in need to define the meaning of practice. The following chapter, written for a volume edited by Jacco Bomhoff and Maurice Adams, takes up this challenge in two steps. In a first one, it revisits comparative law’s seemingly eternal self-doubt regarding its target of inquiry and its method. I will suggest that there is a great promise for comparative legal studies in the context of transnational legal pluralism as a methodological approach to the …

Transnational Legal Discourse: Reflections On My Time With The German Law Journal, Peer Zumbansen

Peer Zumbansen

This paper looks back at the first decade and a half of the German Law Journal, an online law review launched in 2000 and co-founded/co-edited by the author from 2000 until 2013. The refereed Journal, published monthly in English, began with case notes and essays on German, European and International high court decisions, and over time grew into a lively transnational forum for critical legal commentary. With a worldwide readership and authors ranging from law students to Supreme Court Justices, the Journal has long been both a launching pad for emerging scholars‘ writing careers and a vehicle for critical intervention …

New Trends In Procedural Law: New Technologies And The Civil Litigation Process, Janet Walker, Garry D. Watson

Janet Walker

The impact of new techonologies in the US, the UK, Canada, Australia, Singapore and Israel are compared.

Provisional And Protective Measures In International Litigation: Mareva And Grupo Mexicano, Janet Walker

Janet Walker

The decision of the US Supreme Court in Grupo Mexicano highlights features of US legal traditions that differ from those that form the basis of the evolving approaches to international jurisdiction in Canada, particularly in the area of interim measures.

A Perspective From Honduras' Civil Society Truth Commission, Craig Scott

Craig M. Scott

The present document formed the basis for a presentation by the author to the Standing Committee on Foreign Affairs and International Development of the House of Commons of Canada during a March 9, 2011, hearing on the situation in Honduras. After referencing the June 28, 2009, coup d’ état in Honduras, the author describes how the post-coup political situation led to the creation of two commissions – a Truth and Reconciliation Commission (Comisión de la Verdad y de Reconciliación, or CVR) given its mandate to investigate the “crisis” of June 28, 2009, by the current holder of the Honduran Presidency, …

The Transnationalization Of Truth: A Meditation On Sri Lanka And Honduras, Craig Scott

Craig M. Scott

The present article is an elaboration of the text prepared for a lecture, delivered in London, England, on Tuesday, October 19, 2010, as part of the Centre for Transnational Legal Studies’ annual Transnational Justice Lecture series. A prior version appeared as a working paper in the Osgoode CLPE Research Paper Series. The present Ethics in Action published version contains both a number of important edits and several substantive additions (notably to section III on Honduras) subsequent to the Osgoode CLPE Research Paper. The paper begins, in Section II, with general comments on a notion of “interactive diversity of knowledge” and …

The Law And Politics Of Unjust Enrichment, Dan Priel

Dan Priel

One of the marked differences between American private law and the private law of the rest of the common law world is the relative lack of interest in restitution in the former compared with the enthusiasm for the subject in the latter. It has recently been suggested that this difference has to do with the impact of legal realism on American law. It was realism’s disdain for doctrinal analysis, it is said, which explains why American scholars did not find the largely doctrinally-driven work on restitution very interesting. In this essay I reject this argument as it fails to explain …

The Philosophies Of The Common Law And Their Implications: Common Law Divergences, Public Authority Liability, And The Future Of A Common Law World, Dan Priel

Dan Priel

The common law seems to suffer from a countermajoritarian difficulty: in most of the world, it is law made by unelected judges. What could justify it? In this essay I consider the answer to this question through the lens of the question of convergence among common law countries. Common law convergence is the view that different common law jurisdictions should aim to have a (fairly) similar laws of contract, torts, and so on. I identify three different attitudes towards common law convergence. One view seeks universal convergence (one that extends to all legal systems, regardless of their origin), the second …

Bankruptcy For The Poor?, Stephanie Ben-Ishai, Saul Schwartz

Stephanie Ben-Ishai

The conventional wisdom is that the poor are not heavy users of the insolvency system, because creditors are unwilling to take risks on the poor and because many of the poor are judgment-proof. However, credit is now widely available across the spectrum of income groups. In addition, poverty is often a temporary state for many Canadians; therefore, being judgment-proof is likewise temporary. Some of those who are poor at any point in time are in fact in need of bankruptcy protection. They have debts that they are unable to pay and little likelihood of being able to repay in the …

All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet

Jud Mathews

This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how …

Foreign Precedent In State Const Interpretation, Jonathan L. Marshfield

Jonathan Marshfield

Ending Female Genital Mutilation And Child Marriage In Tanzania, Lisa Avalos, Naima Farrell, Rebecca Stellato, Marc Werner

Lisa Avalos