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Articles 211 - 240 of 621
Full-Text Articles in Entire DC Network
The Extraterritoriality Of Eu Data Privacy Law - Its Theoretical Justification And Its Practical Effect On U.S. Businesses, Dan Jerker B. Svantesson
The Extraterritoriality Of Eu Data Privacy Law - Its Theoretical Justification And Its Practical Effect On U.S. Businesses, Dan Jerker B. Svantesson
Dan Svantesson
Due to its extraterritorial effect, the European Union’s trailblazing data privacy law has long been a major concern for U.S. businesses. With the proposal for a new data privacy framework in the EU, with potential penalties of up to 2% of an offending enterprise’s annual worldwide turnover, such concerns are justified indeed; particularly as the EU at the same time seems to be expanding the extraterritorial reach of its data privacy law.
This article examines the extraterritoriality of current and proposed EU data privacy law and analyses whether those claims of extraterritoriality can be either justified or objected to by …
Critical Tax Policy: A Pathway To Reform?, Nancy J. Knauer
Critical Tax Policy: A Pathway To Reform?, Nancy J. Knauer
Nancy J. Knauer
The Global Recession of 2008 and ensuing austerity measures have renewed the urgency surrounding the call for fundamental tax reform. Before embarking on fundamental tax reform, this Article proposes adding a critical lens to existing US tax policy to ensure that any proposals for change are informed, transparent, and responsive to the needs (and abilities) of individual taxpayers. This Article makes the case for a specific method of inquiry – Critical Tax Policy – that is built on the articulation of difference rather than false assumptions of sameness. Critical Tax Policy incorporates the insights of a growing international tax equity …
Patent Protection Of Pharmacologically Active Metabolites: Theoretical And Technological Analysis On The Jurisprudence Of Four Regions, Richard Li-Dar Wang, Pei-Chen Huang
Patent Protection Of Pharmacologically Active Metabolites: Theoretical And Technological Analysis On The Jurisprudence Of Four Regions, Richard Li-Dar Wang, Pei-Chen Huang
Richard Li-dar Wang
Active metabolite patents have been instrumental for brandname pharmaceutical companies to maintain their exclusivity even after the drug patents expire. This strategy obstructs market entry of generic medicine and reduces affordable drugs. The authors review jurisprudence from the United States, Europe, India, and Taiwan in search for practical solutions to confront this problem. Given the unique pharmacological value that active metabolites may possess, patent protection for those purified or synthesized in vitro should be preserved, but for those produced by metabolism should be declined. Except India, most countries under investigation comport with this dichotomy. Their jurisprudence may be subsumed into …
Processes, Standards And Politics: Drafting Short Titles In The Westminster Parliament, Scottish Parliament, And U.S. Congress, Brian Christopher Jones
Processes, Standards And Politics: Drafting Short Titles In The Westminster Parliament, Scottish Parliament, And U.S. Congress, Brian Christopher Jones
Brian Christopher Jones
Investigating the similarities and differences between the US Congress, Westminster Parliament and Scottish Parliament in regard to short titles of Bills and Acts, this article finds there to be a significant divide between Congress and the UK institutions in regard to both the content included in titles and the methods by which they are drafted. Though the three institutions provide recognized points of comparison, it demonstrates that Congress is severely out-of-step with their transatlantic neighbors. The roles of drafters, legislators, House Authorities, drafting guidelines and some constitutional/legislative processes issues that vary between the lawmaking bodies are examined in order to …
The Separation Of Powers, Constitutionalism And Governance In Africa: The Case Of Modern Cameroon, John Mukum Mbaku
The Separation Of Powers, Constitutionalism And Governance In Africa: The Case Of Modern Cameroon, John Mukum Mbaku
JOHN MUKUM MBAKU
The Separation of Powers, Constitutionalism and Governance in Africa: The Case of Modern Cameroon
John Mukum Mbaku, Esq.
Abstract
Countries incorporate the principle of the separation of powers in their constitutions in an effort to meet several goals, the most important of which is to minimize government-induced tyranny. Specifically, countries that make this principle part of their constitutional practice intend to limit public servants by national laws and institutions, enhance government accountability, minimize opportunistic behaviors by civil servants and politicians, provide for checks and balances, and generally improve government efficiency. Cameroon, like many other African countries that transitioned to democratic …
Social Protection Afforded To Irregular Migrant Workers: Thoughts On International Norms, The Southern African Development Community, Botswana And South Africa, Bruno Ps Van Eck, Felicia Snyman
Social Protection Afforded To Irregular Migrant Workers: Thoughts On International Norms, The Southern African Development Community, Botswana And South Africa, Bruno Ps Van Eck, Felicia Snyman
Bruno PS Van Eck
The majority of migrant workers target those countries in southern Africa that have stronger economies. Irregular migrants are in a particularly vulnerable position, and this article discusses the protection that this category of persons may expect to experience in the southern African region. The authors recommend that the broad notion of “social protection”, rather than the narrower concept “social security” should be emphasized. International, continental and regional instruments providing protection to irregular migrants are traversed and the constitutional and legislative frameworks in relation to social protection in Botswana and South Africa are compared. The article concludes that there are significant …
Still On The Repayment Of Indirect Taxes, Hugo B. Machado
Still On The Repayment Of Indirect Taxes, Hugo B. Machado
Hugo de Brito Machado Segundo
The repayment of indirect taxes raises questions in many parts of the world, mainly because of the so called “passing-on defense”. Brazilian Courts has given inadequate treatment to this subject, which, in fact, denies the judicial review of the tax relationship, violating the the idea of rule of law. European Court of Justice has different concerns when examining the matter, recognizing that the shift of the tax burden is very difficult to determine and measure. It happens in relation to all taxes, to a greater or lesser extent, and should be taken into consideration by the legislature in fixing the …
Enforcing International Law: States, Ios, And Courts As Shaming Reference Groups, Roslyn Fuller, Sandeep Gopalan
Enforcing International Law: States, Ios, And Courts As Shaming Reference Groups, Roslyn Fuller, Sandeep Gopalan
Roslyn Fuller
We seek to answer the question as to whether international law imposes meaningful constraints on state behaviour. Unabated drone strikes by the dominant superpower in foreign territories, an ineffective United Nations, and persistent disregard for international law obligations, as evidenced by states killing their own citizens, all suggest that the sceptics have won the debate about whether international law is law and whether it affects state behaviour. We argue that such a conclusion would be in error because it grossly underestimates the complex ways in which IL affects state behaviour. We argue that scholars who claim that the lack of …
A Dialogue On Jordanian Legal Education, George Critchlow, Nisreen Mahasneh
A Dialogue On Jordanian Legal Education, George Critchlow, Nisreen Mahasneh
George Critchlow
This a readable article about the need for legal education reform in Jordan. It grew out of the experiences, discussions, and shared interests of the co-authors – a Jordanian female law professor and an American male law professor who have worked with the American Bar Association Rule of Law Initiative (ABA ROLI) and Jordanian law faculties to develop strategies for strengthening legal education in Jordan. The article is unusual in that it is presented as a dialogue in order to identify and reflect the authors’ different professional and cultural perspectives. The text is supported by citation to authority in conventional …
Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan
Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan
Melissa K. Scanlan
Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a …
E Unum Pluribus: The Limitations On State Law Because Of Foreign Policy Uses Of State Law As A Gap Filler To Meet The International Obligations Of The United States, Llewellyn Gibbons
E Unum Pluribus: The Limitations On State Law Because Of Foreign Policy Uses Of State Law As A Gap Filler To Meet The International Obligations Of The United States, Llewellyn Gibbons
Llewellyn Joseph Gibbons
Unlike many nations where the ratification of a treaty immediately changes its internal laws, in the United States, unless the language of the treaty is self-executing, Congress must affirmatively change domestic laws to conform to the obligations of the treaty. Increasing, it is a modern trend for the United States to represent in international forums that the United States is in conformity with its international obligations because of state statutes or because of common law court decisions. This article looks whether the foreign policy representations of the United States to other countries (in the context of the international intellectual property …
A Decade Of Progress: Promising Models For Children Found In The Turkish Juvenile Justice System, Brenda A. Mckinney, Lauren Salins
A Decade Of Progress: Promising Models For Children Found In The Turkish Juvenile Justice System, Brenda A. Mckinney, Lauren Salins
Brenda A McKinney
Turkey has improved its approach to interacting with children in conflict with the law over the past decade, moving closer to a system that ensures its children the opportunity to strive for a better future. This Article focuses on two promising Turkish reforms that hold potential to improve juvenile justice systems internationally, namely: open model incarceration and Turkey’s approach to diversion. This Article demonstrates how a child-centered juvenile justice system can improve public safety and outcomes for youth. It also addresses potential challenges to each model and identifies broader issues that may require reform.
Judicialization Of Socio-Economic Rights In Brazil: The Subversion Of An Egalitarian Discourse, Vanice L. Valle
Judicialization Of Socio-Economic Rights In Brazil: The Subversion Of An Egalitarian Discourse, Vanice L. Valle
Vanice L. Valle
This article describes the historical origins of the Brazilian constitutional frame of socio-economic rights, and the political context that lead to their enforcement through the Judiciary. Based in a particular constitutional text that asserts socioeconomic rights’ immediate enforceability, the present theoretical comprehension is that they establish the State’s obligation to provide goods and services. The consequence is an intense judicialization of rights such as health, education and housing, which results in a wide exercise of judicial activism in controlling public policies – with the Judiciary renouncing to the objective rational criteria consubstantiated in the law, and to an approach that …
Judicial Adjudication In Housing Rights In Brazil And Colombia: A Comparative Perspective, Vanice L. Valle
Judicial Adjudication In Housing Rights In Brazil And Colombia: A Comparative Perspective, Vanice L. Valle
Vanice L. Valle
Cooperative constitutionalism is the watchword in the 21st. century, and the creation of a judicial network is an important tool to improve human rights protection. This paper intends to contribute in that field, reporting the constitutional framework and the main decisions held by the Brazilian and the Colombian Constitutional Courts in protecting housing rights. The comparison is justified by the historical proximity in the juridical transition in both countries – 1988 in Brazil and 1991 in Colombia –; and also by the clear inspiration that Colombia took in the Brazilian Constitution at the time of their Constituent Assembly. As the …
Speech Along The Atrocity Spectrum, Gregory S. Gordon
Speech Along The Atrocity Spectrum, Gregory S. Gordon
Gregory S. Gordon
In the abstract, speech may have much intrinsic value with its power to facilitate democracy, self-actualization, and good will. But, in certain contexts, it can also be quite deleterious, spawning division, ignorance, and hatred. Within the crucible of atrocity, speech may be similarly Janus-faced. Its power to prevent mass violence is indubitable. But its capacity for enabling mass violence is similarly unquestionable. So the issue arises: when and how may speech work for good or ill in relation to atrocity? This Article grapples with that question. And, in doing so, it finds that the relationship between speech and atrocity should …
Ownership Is Nine-Tenths Of Possession: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung
Ownership Is Nine-Tenths Of Possession: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung
martin hirschprung
Possession is nine-tenths of ownership. And yet, the concept of possession remains woefully unclear in the law, thereby rendering the very idea of ownership too somewhat murky. This Article argues that there exists a reflexive relationship between possession and ownership, and that one’s understanding of ownership and its incidents influence the very concept of possession, rather than vice-versa. The Article further argues that given this reality, the application of the concept of stewardship to question of possession can aid significantly in resolving some of the most important contemporary disputes regarding possession and ownership in society, such as disputes between museums …
Investment Dispute Resolution Under The Transpacific Partnership Agreement: Prelude To A Slippery Slope?, Leon E. Trakman Professor
Investment Dispute Resolution Under The Transpacific Partnership Agreement: Prelude To A Slippery Slope?, Leon E. Trakman Professor
Leon E Trakman Dean
Intense debate is currently brewing over the multistate negotiation of the Transpacific Partnership Agreement [TPPA], led by the United States. The TPPA will be the largest trade and investment agreement after the European Union, with trillions of investment dollars at stake. However, there is little understanding of the complex issues involved in regulating inbound and outbound investment. The negotiating of the TPPA is shrouded in both mystery and dissension among negotiating countries. NGOs, investor and legal interest groups heatedly debate how the TPPA ought to regulate international investment. However this dissension is resolved, it will have enormous economic, political and …
The Obligation To Investigate Ill-Treatment Of Persons With Disabilities: The Way Forward, Janos Fiala-Butora
The Obligation To Investigate Ill-Treatment Of Persons With Disabilities: The Way Forward, Janos Fiala-Butora
Janos Fiala-Butora
No abstract provided.
International Money Laundering: The Need For Icc Investigative And Adjudicative Jurisdiction, Michael R. Anderson
International Money Laundering: The Need For Icc Investigative And Adjudicative Jurisdiction, Michael R. Anderson
Michael Anderson
Money laundering is one of the most pressing issues in the realm of international financial crimes. One of the biggest issues involved in international money laundering is the problem of adjudication. There is no international organization that currently hears these sorts of claims, forcing nations to adjudicate these crimes on their own, often without adequate resources to effectively investigate and enforce their money laundering statutes.
This article argues that, in order to more effectively prevent and adjudicate international money laundering offenses, the International Criminal Court should adopt an international money laundering statute designating these activities as a crime within the …
Why Do Europeans Ban Hate Speech? A Debate Between Karl Loewenstein And Robert Post, Robert Kahn
Why Do Europeans Ban Hate Speech? A Debate Between Karl Loewenstein And Robert Post, Robert Kahn
Robert Kahn
European countries restrict hate speech, the United States does not. This much is clear. What explains this difference? Too often the current discussion falls back on a culturally rich but normatively vacant exceptionalism (American or otherwise) or a normatively driven convergence perspective that fails to address historical, cultural and experiential differences that distinguish countries and legal systems. Inspired by the development discourse of historical sociology, this article seeks to record instances where Americans or Europeans have argued their approach to hate speech laws was more “advanced” or “modern.”
To that end this article focuses on two authors whose writing appears …
Transplanting A Poison Pill To Controlling Shareholder Regimes: Why It Is So Difficult, Sang Yop Kang
Transplanting A Poison Pill To Controlling Shareholder Regimes: Why It Is So Difficult, Sang Yop Kang
Sang Yop Kang
Recently, the great tide of globalization has caused M&A activities to spill over into controlling shareholder regimes (economies dominated by controlling shareholders). Due to a seismic change arising from an unprecedented takeover wave, transplanting the Delaware pill has been heavily discussed in controlling shareholder regimes. This Article explores how legal and socio-economic conditions of the United States (State of Delaware) and controlling shareholder regimes are different and why transplanting the Delaware pill could create unintended results in controlling shareholder regimes. First, the legitimacy of the Delaware pill is supported by corporate governance institutions, such as a relatively functional board, a …
Is Torture Justified In Terrorism Cases?: Comparing U.S. And European Views, Stephen P. Hoffman
Is Torture Justified In Terrorism Cases?: Comparing U.S. And European Views, Stephen P. Hoffman
Stephen P. Hoffman
This essay discusses issues of torture and some of the philosophical underpinnings. First, I define torture as it is used in international and human rights law. Then, I discuss three primary theories of torture: deontology, consequentialism, and threshold deontology. After setting this groundwork, I introduce particular issues in terrorism cases such as the “ticking bomb” scenario, which is often used to argue that torture may be appropriate and possibly required when done to save many lives. This invariably must include a discussion of the necessity doctrine, the legal doctrine allowing an individual to take extraordinary — even illegal — measures …
Euthanasia And Physician-Assisted Suicide: A Comparison Of Eu And U.S. Law, Stephen Hoffman
Euthanasia And Physician-Assisted Suicide: A Comparison Of Eu And U.S. Law, Stephen Hoffman
Stephen P. Hoffman
This paper examines the controversial and complex issues of euthanasia and physician-assisted suicide (PAS). I begin by defining and distinguishing these two terms and explain how they relate to each other. I also describe the medical doctrine of double effect, in which relieving pain comes at the expense of hastening death. Then, I give a brief overview of the common law defense of necessity, which is practically the sole defense available to or used by physicians accused of committing euthanasia or PAS. Finally, I analyze the legal doctrines of euthanasia and PAS, focusing on legislation and cases in the European …
Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill
Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill
Gregory Shill
Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.
In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …
Culture And The Rule Of Law: Cautions For Constitution-Making, David Pimentel
Culture And The Rule Of Law: Cautions For Constitution-Making, David Pimentel
David Pimentel
Constitution-making in developing and post-conflict countries is a growth industry throughout the world. A country needing a new constitution will necessarily feel pressure to adopt, to "import," constitutional texts and principles from other, perhaps more developed nations, knowing that (1) such concepts have been tried and proven in other successful nations, and (2) they meet internationally-recognized minimum standards. A constitution, however, is, and must be, both a product of and a reaction to the society’s culture, and that includes its legal tradition, its history, and its ideology. Unless constitutions are drafted in cultural context, the best intentions are likely to …
One Country, Two State Immunity Doctrines: A Pluralistic Depiction Of The Congo Case, Chien-Huei
One Country, Two State Immunity Doctrines: A Pluralistic Depiction Of The Congo Case, Chien-Huei
chien-huei wu
This article explores the space for a restrictive state immunity doctrine applicable in Hong Kong in light of its status as a special administrative region of China. After reviewing China’s longstanding position, its domestic legislation and its signature of the UNJISTP, it finds China’s policy shift from conventional absolute state immunity doctrine to a restrictive one. Nonetheless, such shift is not reflected in the Congo case. After examining the rulings of the CFI, CA and CFA, it argues that state immunity is a question of law to be interpreted by the courts. The competence to adopt a different state immunity …
International Legal Positivism And Legal Realism, D. A. Jeremy Telman
International Legal Positivism And Legal Realism, D. A. Jeremy Telman
Law Faculty Publications
This chapter, a contribution to a book on International Legal Positivism in a Post-Modern World, gauges the potential for mutually enriching interactions between international legal positivism and legal realism. It first describes the encounter between legal positivism and legal realism in the U.S. legal academy and then proceeds to discuss the rise of a new legal realism in international legal theory. In a concluding section, the chapter assesses the compatibilities and tensions between the new international legal realism and the new international legal positivism.
With its forthright embrace of the inescapability of uncertainty in law, the new international legal …
No More Solitude? Workers' Conditions And Rights In Latin America During The Great Recession, César Rosado Marzán
No More Solitude? Workers' Conditions And Rights In Latin America During The Great Recession, César Rosado Marzán
César F. Rosado Marzán
No abstract provided.
Reforming Surveillance Law: The Swiss Model., Susan Freiwald, Sylvain Méille
Reforming Surveillance Law: The Swiss Model., Susan Freiwald, Sylvain Méille
Susan Freiwald
As implemented over the past twenty-seven years, the Electronic Communications Privacy Act (“ECPA”), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law, CrimPC, regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This Article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, Swiss CrimPC presents a model for more fundamental reform of U.S. law.
This Article is the first to analyze the Swiss law with international eyes and demonstrate its advantages over the U.S. …
Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia And Central Asia, Elizabeth A. Clark