Law Commons^™

The Comparative Law And Economics Of Pure Economic Loss, Francesco Parisi, Vernon Valentine Palmer, Mauro Bussani

George Mason University School of Law Working Papers Series

Law and economics shows that a key factor in determining the optimal economic loss rule is found in the relationship between pure economic loss and social loss. Economic loss should be compensable in torts only to the extent that it corresponds to a socially relevant loss. In this paper we undertake a comparative evaluation of the economic loss rule to verify whether modern legal systems, although not formally adopting the economic criterion, define the exclusionary rule in light of efficiency considerations. The comparative analysis reveals that the substantive applications of the economic loss rule in European jurisdictions are consistent with …

The Japanese Antimonopoly Act And Nonassertion Of Patents Provisions: Microsoft's Conflict With The Japan Fair Trade Commission, Courtney E. Mertes

Washington International Law Journal

In recent decades, Japan has strengthened its antimonopoly regulations. Now, a country that historically favored internal collusion continues to develop a stringent antimonopoly regime that encourages competition. The Japan Fair Trade Commission ("JFTC") enforces the Japanese Act Concerning the Prohibition of Private Monopoly and the Maintenance of Fair Trade ("Antimonopoly Act") and its provisions dealing with unfair trade practices. The JFTC takes a strong stance in enforcement of the Act and violators follow its recommendations. The JFTC has charged Microsoft Corporation ("Microsoft") with abuse of a dominant bargaining position and unfair trade practices in its use of restrictive provisions, such …

Extreme Policy Makeover: Re-Evaluating Current U.S.-Vietnam Relations Under The International Religious Freedom Act, Kevin V. Tu

Washington International Law Journal

Following the signing of the Paris Peace Accord in 1973, the relationship between the United States and Vietnam remained essentially frozen. In 2000, the signing of the United States-Vietnam Bilateral Trade Agreement was an epic step in the normalization of relations. In addition, the BTA was hailed as a means of effectuating positive change in the area of Vietnam's human rights. Unfortunately, the state of religious freedom in Vietnam has deteriorated while economic ties with the United States have strengthened. Despite Vietnam's purported respect for religious freedom, violations continue. Vietnam restricts the practice of religion, detains religious leaders, and tolerates …

State Responsibility And Maritime Terrorism In The Strait Of Malacca: Persuading Indonesia And Malaysia To Take Additional Steps To Secure The Strait, Tammy M. Sittnick

Washington International Law Journal

The Strait of Malacca, located between Indonesia and Malaysia, and opening into the Pacific Ocean off the coast of Singapore, is not only one of the world's busiest and most vital waterways, but also a likely target for maritime terrorists. High levels of piracy and the presence of numerous regional terrorist organizations suggest the Strait is particularly vulnerable to a maritime terrorist attack. Such an attack would significantly disrupt international trade and could inflict billions of dollars in damage to the global economy. Primary responsibility for the security of the Strait lies with the coastal states of Indonesia, Malaysia, and …

Regulation On Sino-Foreign Cooperation In Making Television Programs, Litong Chen

Washington International Law Journal

The Chinese Government traditionally has believed that the voices of adversaries, whether foreign or domestic, should not be heard. The Preamble to the Chinese Constitution states that, "The Chinese people must fight against those forces and elements, both at home and abroad, that are hostile to China's socialist system and try to undermine it."' The beachhead which has been regarded as most critical for the Communist Party of China ("CPC") to defend is China's mass media—the CPC's mouthpiece for its ideological rhetoric. Conventionally, the best way to keep a beachhead is to repel the enemy from its shores. Historically, China …

Enriching The Land Or The Political Elite? Lessons From China On Democratization Of The Urban Renewal Process, Pamela N. Phan

Washington International Law Journal

As China in the twenty-first century rushes ahead in its quest to become more developed and cosmopolitan, the poor are increasingly cast as outsiders to the nation's new social contract and urban development politics. Nowhere is the contrast between China's urban rich and rural poor as stark as on the land itself. In cities throughout China, land continues to be taken away from the collective and placed into the hands of an increasingly rich and powerful elite. As a new society built upon urban poverty, exclusion, and inequality emerges, and the gap between rich and poor widens, the new political …

Australia's Damaging International Trade Practice: The Case Against Cruelty To Greyhounds, Alison G. Jones

Washington International Law Journal

The Australian greyhound racing industry is capitalizing on newly emerging markets in countries such as China and South Korea. The industry's drive to profit from promoting greyhound racing in these countries has put the welfare of greyhounds at risk. By exporting these dogs to China and South Korea, Australia is violating the spirit and general intent of its own animal cruelty laws, which guard against the type of animal abuse that occurs largely unchecked in those countries. Therefore, Australia should put an end to such exports as soon as possible. Under the General Agreement on Tariffs and Trade ("GATT"), Australia …

Lochner In Europe: A Comment On Keith Whittington's Congress Before The Lochner Court Symposium: Lochner Centennial Conference, Daniela Caruso

Faculty Scholarship

In 1904, St. Louis, Missouri was the place to go. In conjunction with its spectacular world's fair, the city also hosted the Universal Congress of Lawyers and Jurists, known in academic circles as the foundational event of American comparative law.1 Within a big screen entirely devoted to the Lochner2 centennial, this comment aims at opening a window on another centennial - the hundredth anniversary of comparative law in the United States.Though inspired by the Universal Congress, this comment does not partake in the celebratory spirit of anniversaries.3 Far from espousing a romanticized or universalist conception of comparative law, these pages …

Victims Of Peace: Current Abuse Allegations Against U.N. Peacekeepers And The Role Of Law In Preventing Them In The Future, Alexandra R. Harrington

ExpressO

This article addresses the increasingly prevalent and horrific allegations of sexual abuse made against U.N. peacekeepers. The primary allegations addressed are those from the Congo, as the most plentiful and readily available evidence of these abuses comes from the region. The goal of this paper is not merely to critique the U.N. and its handling of the current peacekeeper abuse allegations, as such a critique would only serve half of the problem. Rather, this paper will use the past and current understandings of the U.N. Charter, peacekeeping, international law, and military justice to suggest several options for handling both the …

Harmonizing Business Laws In Africa: Ohada Calls The Tune, Claire M. Dickerson

ExpressO

OHADA (in English, “Organization for Harmonization in Africa of Business Laws”) is a system of business laws and implementing institutions. Sixteen West African nations adopted this regime in order to increase their attractiveness to foreign investment. Because most of the member-states are former French colonies, the OHADA laws are based on the French legal system. Despite certain economists’ recent, well-publicized assertions that any French-based legal system is incompatible with development, other studies challenge those claims and in doing so outline characteristics that a pro-development system of business laws should possess. A review of selected provisions from OHADA’s corporate law and …

A Model For Emergency Service Of Voip Through Certification And Labeling, Patrick S. Ryan, Tom Lookabaugh, Douglas Sicker

ExpressO

Voice over Internet Protocol (VoIP) will transform many aspects of traditional telephony service, including the technology, the business models, and the regulatory constructs that govern such service. Perhaps not unexpectedly, this transformation is generating a host of technical, business, social, and policy problems. In attempting to respond to these problems, the Federal Communications Commission (FCC) could mandate obligations or specific solutions to VoIP policy issues; however, it is instead looking first to industry initiatives focused on the key functionality that users have come to expect of telecommunications services. High among this list of desired functionality is user access to emergency …

Intellectual Property Rights In Digital Media: A Comparative Analysis Of Legal Protection, Technological Measures And New Business Models Under E.U. And U.S. Law, Nicola Lucchi

ExpressO

The production of digital content is a phenomenon which has completely changed the conditions of access to knowledge. Within this framework it becomes even more important to find and to formulate a new settlement for intellectual property rights balancing contrasted rights. Owners of the old technology and policy makers have found two different solutions and remedies for intellectual property rights: legal and technological. When both remedies work together any rights that a consumer may have under copyright law could be replaced by a unilaterally defined contractual term and condition. To balance this inequity this article analyses different solutions under U.S. …

Countering Terrorism: From Wigged Judges To Helmeted Soldiers - Legal Perspectives On America's Counter-Terrorism Responses, Jackson Nyamuya Maogoto

San Diego International Law Journal

This Article aims to evaluate the international legal perspectives attendant to U.S. counter-terrorism measures and policy and the attendant strictures an implications. Part II commences by grappling with the uneasy relationship that legal and political complexities have foisted on the UN's ability to address terrorism and the difficult issue of the definition of terrorism. Within the context of this part, the Article also addresses the two dominant counter-terrorism paradigms-law enforcement and conflict management. Part III oves on to evaluate the law enforcement paradigm which treats terrorism as a crime engaging domestic law enforcement. This part offers a discussion of the …

The European Neighborhood Policy And Its Impact On The Israel - European Union - United States Triangle, Guy Harpaz

San Diego International Law Journal

This Article is not intended to deal with the feasibility of successfully implementing the [European Neighbourhood Policy] ENP, nor does it address its normative aspects from the European perspective. Instead, this article assumes that the parties will successfully implement the ENP, and on the basis of that assumption, attempts to provide a first, critical and interdisciplinary examination of the potentially significant impact of the ENP on the legal, economic, social, and trade landscape of the State of Israel, her citizens, economy, and on her relations with the EU and the United States.

Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger

San Diego International Law Journal

This Article argues that given the unique and significant contribution of journalists to uncovering and documenting war crimes, the ICC should amend its evidentiary rules to recognize a qualified journalist's privilege. In doing so, the ICC should clearly identify who may benefit from such a privilege, clarify a procedure for balancing the need of reportorial testimony against prosecution and defense interests, and, lastly provide for mandatory consultations between the court and affected news organizations or journalists before allowing the issuance of a subpoena. Such clarity will benefit not only journalists working in war zones and the ICC, but will provide …

China's Media: The Impact Of The Internet, Richard Cullen, D. W. Choy

San Diego International Law Journal

[T]his paper provides a review of how the use of the Internet has grown and been regulated in China. We then draw some conclusions on what the experience to date may have to tell us about future regulatory and usage patterns with respect to the Internet in China.

Child Labor: The Pakistani Effort To End A Scourge Upon Humanity - Is It Enough?, Aine Smith

San Diego International Law Journal

This Article will encompass the issues necessary to create such a report card. In the process of assessing Pakistan's efforts, this article will demonstrate that the measures taken in Pakistan are not sufficient to end bonded child labor. In addition, this comment proposes that the international community must expend more financial and legal resources to tackle the problem of child labor. Part II focuses on Pakistan's use of child labor. This includes a discussion of the history of child labor, the international rights being abrogated by child labor, the efforts implemented to combat child labor, and an evaluation of Pakistani …

New Objectives For Cfius: Foreign Ownership, Critical Infrastructure, And Communications Interception, James A. Lewis

Federal Communications Law Journal

Global economic integration creates new risks for national security. Foreign ownership of telecommunications service providers is an area of expanding concern. Foreign ownership could multiply opportunities for espionage by increasing foreign entities' access to U.S. communications and networks as well as increasing the complexity of defenders' tasks. Foreign ownership could make law enforcement communications interception more difficult. Foreign ownership could also increase the ability of a potential opponent to disrupt critical infrastructure and the services the foreign-controlled entities provide. These concerns create interest in improving existing processes for managing the risks associated with foreign ownership--such responsibility principally lies with the …

The European Pasteurization Of French Law, Mitchel De S.-O.-L'E. Lasser

Cornell Law Faculty Publications

In a series of stunning decisions handed down in the last few years, the European Court of Human Rights (ECHR) has condemned the decisionmaking procedures traditionally used by the French Supreme Courts (i.e., the Cour de cassation and the Conseil d'Etat). This Article traces and critiques this developing “fair trial” jurisprudence, which has also resulted in the condemnation of the supreme courts of Belgium, Portugal, and the Netherlands, whose decisionmaking procedures were all patterned on the French civil law model. Finally, the Article examines the dramatic and schismatic French responses that have ensued.

This Article offers a case study at …

Is There A Future For Leniency In The U.S. Criminal Justice System?, Nora V. Demleitner

Michigan Law Review

The spring 2004 release of the gruesome pictures of sexual humiliation and torture at Abu Ghraib prison outside of Baghdad revealed how some U.S. troops, intelligence officers, and private contractors treated Iraqi prisoners taken during and after the war. High-ranking government officials may have condoned, if not encouraged, the abuses. Only reluctantly have they agreed to extend protections customarily accorded civilians and military fighters during a war to individuals detained in Iraq and Afghanistan. As Congressional investigations appear to have stalled, military inquiries have been manifold but resultless. Only a handful of low ranking soldiers have been court-martialed, and a …

Hide It Or Unbundle It: A Comparison Of The Antitrust Investigations Against Microsoft In The U.S. And The E.U., Sue Ann Mota

The University of New Hampshire Law Review

[Excerpt] "Microsoft Corporation, the world’s largest software company, has been facing antitrust scrutiny globally. In the U.S., after what’s been called the antitrust trial of the century, a consent decree was reached between Microsoft, the United States government, and several states, that closely resembled the litigated remedy that the remaining states received. Only Massachusetts appealed the litigated remedy, which was approved by the appeals court on June 30, 2004. In the United States, Microsoft was required to hide, but not remove, the Internet Explorer browser on the Windows Operating System. While antitrust litigation was ongoing in the United States against …

Moving From Impunity To Accountability In Post-War Liberia: Possibilities, Cautions, And Challenges, Rena L. Scott

ExpressO

Liberia has become the quintessential example of an African failed state. Though Liberia’s civil war is officially over, war criminals are free and some are even helping run the transitional government under the authority of Liberia’s Comprehensive Peace Agreement (CPA). This peace agreement calls for the consideration of a general amnesty for those involved in the Liberian civil war alongside the parceling of governmental functions among members of various rebel groups. The drafters of the agreement claim that this was the only viable solution for sustainable peace in Liberia. Meanwhile, Charles Taylor relaxes in Nigeria’s resort city of Calabar. To …

Exporting U.S. Anti-Terrorism Legislation And Policies To The International Law Arena, A Comparative Study: The Effect On Other Countries' Legal Systems, Olga Kallergi

Cornell Law School Inter-University Graduate Student Conference Papers

The terrorist attack on the World Trade Center in New York on 9/11 set in motion a new era all over the world: an era of a world uniting against a common enemy, but also an era of insecurity and fear. Laws have been changed worldwide, nations have united against a common threat, legal theories and beliefs of centuries have been questioned, and civil liberties have been replaced by a need for national safety. Has this worldwide effort worked? Is our world a better place now that we are all fighting the same enemy? Did we learn from our past …

The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law

ExpressO

Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign’s power, enable the sovereign to make such commitments. This essay advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems – undercommitment and overcommitment – between which they must steer: an actor that can bind itself …

A Just World Under Law: A Just And Peaceful World Under The Rule Of Law, Sompong Sucharitkul

Publications

Presentation given to the Fourteenth Regional Meeting of the American Society of International Law in combination with the Fifteenth Annual Fulbright Symposium at Golden Gate University School of Law.

Modernization Of European Antitrust Enforcement: The Economics Of Regulatory Competition, Ben Depoorter, Francesco Parisi

George Mason University School of Law Working Papers Series

In this article we analyze the expected effects of regulatory overlap in European competition law resulting from Regulation 1/2003. Drawing upon recently developed economic theories of regulatory competition, our model foresees a number of qualitative adjustments resulting from this reform. On one hand, the direct applicability of the exemption provision should increase the overall amount of exemptions. On the other hand, a decentralized system permits private litigants' forum shopping, and parallel enforcement by multiple national competition authorities will drive up the number of infringement findings. Although the precise direction of substantive competition law is unclear, the overall effect is higher …

Constitutionalism Through The Looking Glass Of Latin America, Miguel Schor

ExpressO

This Article explores the following question: why did constitutionalism in Latin America take a different path than in the United States? Constitutions were adopted throughout the New World in the wake of independence movements in the late eighteenth and early nineteenth centuries to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government. The conventional answer to this issue is that the constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because politics trumped constitutions. This Article …

Selecting The Supremes: The Appointment Of Judges To The Supreme Court Of Canada, Peter Mccormick

The Journal of Appellate Practice and Process

No abstract provided.

The Parental Discipline Defense In New Zealand: The Potential Impact Of Reform In Civil Proceedings, Jennifer A. Brobst

North Carolina Central Law Review

No abstract provided.

Out Of Jahiliyya: Historic And Modern Incarnations Of Polygamy In The Islamic World, Brooke D. Rodgers-Miller

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.