Law Commons^™

A Taxonomy Of Striker Replacements, James J. Brudney

Faculty Scholarship

No abstract provided.

The Rise Of The Security State, Wang Yuhua, Carl F. Minzner

Faculty Scholarship

Over the past two decades, the Chinese domestic security apparatus has expanded dramatically. “Stability maintenance” operations have become a priority for local Chinese authorities. We argue that the birth of these trends dates to the early 1990s, when central Party authorities adopted new governance models that differed dramatically from those that of the 1980s. They increased the bureaucratic rank of public security chiefs within the Party apparatus, expanded the reach of the Party political-legal apparatus into a broader range of governance issues, and altered cadre evaluation standards to increase the sensitivity of local authorities to social protest. We show that …

Disappearing Legal Black Holes And Converging Domains: Changing Individual Rights Protection In National Security And Foreign Affairs, Andrew Kent

Faculty Scholarship

This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution provided protections and those where they did not. The institutional design and operating rules of the national security state tracked these formal, categorical rules about the boundaries of protection. There have …

Procedural Justice Beyond Borders: Mediation In Ghana, Jacqueline Nolan-Haley, James Kwasi Annor-Ohene

Faculty Scholarship

Ghana enacted comprehensive alternative dispute resolution legislation in 2010 with the specific goals of providing access to justice and promoting domestic and foreign direct investment (The Act). A significant aspect of the Act was the inclusion of customary arbitration and mediation. The focus of this Article is on mediation as this is the first time that mediation has been included in a statute in Ghana. The Act’s definition of mediation reflects an understanding of the mediation process based upon the western values of individual autonomy and party self-determination. These principles represent a significant departure from the more communal values of …

Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger J. Goebel

Faculty Scholarship

The goal of this article is to provide an overview of the progressive augmentation of the supranational character of the governmental structure of the initial EEC, gradually evolving into the present European Union, particularly as a consequence of revisions to the constituent Treaties. Part I of this article presents the European Commission, the initial institution whose structure and operations have always been markedly supranational in character and which has always been dedicated to the promotion of supranational goals. Part II examines the Council of Ministers, the political institution that is intrinsically intergovernmental in character, but whose operational role in the …

International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee

Faculty Scholarship

This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.

The Case For Decriminalization Of Sex Work In South Africa, Chi Adanna Mgbako, Katherine G. Bass, Erica Bundra, Mehak Jamil, Jere Keys, Lauren Melkus

Faculty Scholarship

Activists for sex worker rights in South Africa are leading a sophisticated national campaign to decriminalize sex work. This Article serves as an act of solidarity with these activists’ continued efforts to fight for and realize sex workers’ human rights by examining the negative impact that criminalizing prostitution has on sex workers’ rights and presenting evidence-based arguments to show that South Africa should enact legislation to fully decriminalize sex work. South African sex workers’ real-life experiences with violence, police abuse, and lack of access to health care and the justice system, highlighted through interviews conducted by the authors during fieldwork …

What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner

Faculty Scholarship

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why …

Libya: A Multilateral Constitutional Moment?, Catherine Powell

Faculty Scholarship

The Libya intervention of 2011 marked the first time that the UN Security Council invoked the “responsibility to protect” principle (RtoP) to authorize use of force by UN member states. In this comment the author argues that the Security Council’s invocation of RtoP in the midst of the Libyan crisis significantly deepens the broader, ongoing transformation in the international law system’s approach to sovereignty and civilian protection. This transformation away from the traditional Westphalian notion of sovereignty has been unfolding for decades, but the Libyan case represents a further normative shift from sovereignty as a right to sovereignty as a …

Revolution And Intervention In The Middle East, Catherine Powell

Faculty Scholarship

No abstract provided.

China's Turn Against Law, Carl F. Minzner

Faculty Scholarship

Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.

Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities …

Hate Speech And The Language Of Racism In Latin America: A Lens For Reconsidering Global Hate Speech Restrictions And Legislation Models, Tanya K. Hernandez

Faculty Scholarship

In Latin America, like many countries in Europe, hate speech is prohibited. Yet Latin America is rarely included in the transnational discussion regarding the regulation of hate speech. Instead, the discourse focuses on a comparison of the advisability of Europe's hate speech regulations and free speech acceptance of hate speech in the United States. As a result, the ability to fundamentally examine the connections between hate speech and inequality, in addition to the most effective legal mechanisms for addressing it, is undermined. It is especially critical to broaden the hate speech debate now that we are seeing an apparent rise …

Value Of Intersectional Comparative Analysis To The Post-Racial Future Of Critical Race Theory: A Brazil-U.S. Comparative Case Study, The Commentary: Critical Race Theory: A Commemoration: Response, Tanya K. Hernandez

Faculty Scholarship

This Commentary Article aims to illustrate the value of comparative law to the jurisprudence of Critical Race Theory (CRT), particularly with reference to the CRT project of deconstructing the mystique of "postracialism. " The central thesis of the Article is that the dangerous seductions of a U.S. ideology of "post-racialism" are more clearly identified when subject to the comparative law lens. In particular, a comparison to the Brazilian racial democracy version of "post-racialism"is an instructive platform from which to assess the advisability of promoting post-racial analyses of U.S. racial inequality. In Part I the Article introduces the value of comparative …

Feminism As Liberalism: A Tribute To The Work Of Martha Nussbaum Symposium: Honoring The Contributions Of Professor Martha Nussbaum To The Scholarship And Practice Of Gender And Sexuality Law: Feminism And Liberalism, Tracy E. Higgins

Faculty Scholarship

In this essay, I revisit and expand an argument I have made with respect to the limited usefulness of liberalism in defining an agenda for guaranteeing women's rights and improving women's conditions. After laying out this case, I discuss Martha Nussbaum's capabilities approach to fundamental rights and human development and acknowledge that her approach addresses to a significant degree many of the objections I and other feminist scholars have raised. I then turn to fieldwork that I have done in South Africa on the issue of custom and women's choices with regard to marriage and divorce. Applying Professor Nussbaum's capabilities …

Extraterritorial Electioneering And The Globalization Of American Elections, Zephyr Teachout

Faculty Scholarship

This Essay explores a fascinating new truth: because of the Internet, governments, corporations, and citizens of other countries can now meaningfully participate in United States elections. They can phone bank, editorialize, and organize in ways that impact a candidate's image, the narrative structure of a campaign, and the mobilization of base support. Foreign governments can bankroll newspapers that will be read by millions of voters. Foreign companies can enlist employees in massive cross-continental email campaigns. Foreign activists can set up offline meetings and organize door-to-door campaigns in central Ohio. They can, in short, influence who wins and who loses. Depending …

Judicial Disciplinary Systems For Incorrectly Decided Cases: The Imperial Chinese Heritage Lives On, Carl F. Minzner

Faculty Scholarship

Local Chinese courts commonly use responsibility systems (mubiao guanli zeren zhi, zeren zhuijiu zhi) to evaluate and discipline judges. Judges receive sanctions under these systems for a wide range of behavior, such as illegal or unethical dealings with parties and lawyers, inappropriate courtroom behavior, and neglect of duty.

Many local court Chinese responsibility systems also discipline judges for simple legal error. Judges may face sanctions linked to the number of cases that are reversed on appeal, simply because the interpretation of law made by a higher court differs from that of the original trial judge. Sanctions include monetary fines and …

Riots And Cover-Ups: Counterproductive Control Of Local Agents In China, Carl F. Minzner

Faculty Scholarship

Chinese cadre responsibility systems are a core element of Chinese law and governance. These top-down personnel systems set concrete target goals linked to official salaries and career advancement. Judges and courts face annual targets for permissible numbers of mediated, reversed, and closed cases; Communist Party secretaries and government bureaus face similar targets for allowable numbers of protests, traffic accidents, and mine disasters. For many local Chinese officials, these targets have a much more direct impact on their behavior than do formal legal and regulatory norms.

This Article argues that Chinese authorities are dependent on responsibility systems, particularly their use of …

The Transatlantic Divergence In Legal Thought: American Law And Economics Vs. German Doctrinalism, The, Kristoffel Grechenig, Martin Gelter

Faculty Scholarship

Law and economics has become an integral part of U.S. legal scholarship and the law school curriculum. Ever since the legal realist movement, scholars mostly view the law from an external perspective. It may be surprising to many in the United States that European legal scholarship has been largely resistant to this development. Law is typically viewed "from the inside," that is as an autonomous discipline independent from the other social sciences. Most legal scholarship is doctrinal, meaning that legal scholars employ interpretative methods in order to systematically expose the law and to find out what the law is, frequently …

Consent In Mediation , Jacqueline Nolan-Haley

Faculty Scholarship

This brief comparative analysis of the United States and English approaches to mediation consent raises policy questions about the merits of mandatory mediation. Is England on a better course by requiring consent at the front end of mediation? Will mediation be stronger in the long run when it has a consensual foundation? Arguably, the use of cost sanctions in England's mediation regime makes it close to a mandatory mediation system. For some litigants, participating in mediation will be potentially less costly than arguing that it was not unreasonable to refuse mediation. But despite the mandatory gloss, mediation is still a …

A Comparison Of Criminal Jury Decision Rules In Democratic Countries, Ethan J. Leib

Faculty Scholarship

This paper furnishes jury system information about the twenty-eight democracies (excluding the United States) that have been consistently democratic since at least the early 1990s and have a population of five million people or more (with allowance for Mexico and South Africa). I describe general rules that do not always apply to every crime in every context. In the United States, for example, we tend to use a randomly-selected jury of twelve people that sits for a single case; laws generally require unanimity to convict and unanimity to acquit. Failure to reach unanimity results in a “hung” jury, with the …

Teaching Comparative Perspectives In Mediation: Some Preliminary Reflections Symposium: Transatlantic Perspectives On Alternative Dispute Resolution, Jacqueline Nolan-Haley

Faculty Scholarship

The study of comparative law and legal process in any subject area offers the usual advantages of learning about other countries' legal cultures and developing a deeper understanding of one's own legal tradition. In the case of mediation, it is important to evaluate critically what is learned through comparative analysis. Mediation is still developing as a profession; it is newly institutionalized in legal cultures; and, it is relatively new to the canon of legal education. National legal traditions have responded differently to the implementation of mediation. Thus, lawyers must have an understanding of the differences and nuances in mediation law …

Contractual Expansion Of The Scope Of Patent Infringement Through Field-Of-Use Licensing, Mark R. Patterson

Faculty Scholarship

Patentees sometimes license their inventions through field-of-use licenses, which permit licensees to use the inventions, but only in specified ways. Field-of-use licensing is often procompetitive, because the ability to provide different licensing terms for different users can encourage broader licensing of inventions. But in recent United States cases, the Federal Circuit Court of Appeals and lower courts have upheld field-of-use licenses prohibiting activities that licensees would otherwise have been permitted by patent law, such as the repair and resale of patented products. The recent cases rely on the Federal Circuit's decision in Mallinckrodt, Inc. v. Medipart, Inc., where the court …

Xinfang: An Alternative To Formal Chinese Legal Institutions, Carl F. Minzner

Faculty Scholarship

Formal legal institutions are almost entirely absent from the lives of most Chinese citizens. A range of petitioning institutions and practices operate as a dysfunctional proxy for formal legal channels. Deeply rooted in imperial Chinese history, these practices and institutions have survived into the present in the form of citizen petitioning efforts directed at numerous “letters and visits” (xinfang) bureaus distributed throughout Chinese government organs, including the courts.

This Article examines the historical origins and regulatory basis for the modern xinfang system. It outlines the characteristic tactics of Chinese petitioners who seek to use the system to resolve their grievances. …

Exploration Of The Efficacy Of Class-Based Approaches To Racial Justice: The Cuban Context, An Latcrit Iv Symposium - Rotating Centers, Epanding Frontiers: Theory And Marginal Intersections- Forging Our Identity: Transformative Resistance In The Areas Of Work, Class, And The Law, Tanya K. Hernandez

Faculty Scholarship

The growing discord over the continuing use of race-conscious social justice programs in the United States has given rise to the consideration of replacing them with color-blind class-based affirmative action programs. Although there are a number of theoretical investigations into the proposal for class-based affirmative action, the discourse is short on practical assessments. This Article amplifies the class-based affirmative action debate by drawing lessons from Socialist Cuba's socioeconomic redistribution measures. Inasmuch as Socialist Cuba attempts to diminish racial disparities with the use of colorblind socioeconomic redistribution programs one can classify their strategy as a class-focused rather than a race-focused attack …

Restoring Americans' Privacy In Electronic Commerce Symposium - The Legal And Policy Framework For Global Electronic Commerce: A Progress Report, Joel R. Reidenberg

Faculty Scholarship

In the United States today, substance abusers have greater privacy than web users and privacy has become the critical issue for the development of electronic commerce. Yet, the U.S. government’s privacy policy relies on industry self-regulation rather than legal rights. This article argues that the theory of self-regulation has normative flaws and that public experience shows the failure of industry to implement fair information practices. Together the flawed theory and data scandals demonstrate the sophistry of U.S. policy. The article then examines the comprehensive legal rights approach to data protection that has been adopted by governments around the world, most …

Governing Networks And Rule-Making In Cyberspace, Joel R. Reidenberg

Faculty Scholarship

The global network environment defies traditional regulatory theories and policymaking practices. At present, policymakers and private sector organizations are searching for appropriate regulatory strategies to encourage and channel the global information infrastructure (“GII”). Most attempts to define new rules for the development of the GII rely on disintegrating concepts of territory and sector, while ignoring the new network and technological borders that transcend national boundaries. The GII creates new models and sources for rules. Policy leadership requires a fresh approach to the governance of global networks. Instead of foundering on old concepts, the GII requires a new paradigm for governance …

Anti-Essentialism, Relativism, And Human Rights , Tracy E. Higgins

Faculty Scholarship

Confronted with the challenge of cultural relativism, feminism faces divergent paths, neither of which seems to lead out of the woods of patriarchy. The first path, leading to simple tolerance of cultural difference, is too broad. To follow it would require feminists to ignore pervasive limits on women's freedom in the name of an autonomy that exists for women in theory only. The other path, leading to objective condemnation of cultural practices, is too narrow. To follow it would require feminists to dismiss the culturally distinct experiences of women as false consciousness. Yet to forge an alternative path is difficult, …

The Privacy Obstacle Course: Hurding Barriers To Transnational Financial Services, Joel R. Reidenberg

Faculty Scholarship

This article addresses the challenge to transnational financial services resulting from national regulation of information processing. National laws around the world seek to define fair information practices for the private sector and contain prohibitions on data transfers to foreign destinations that lack sufficient privacy protection. The effect of these laws for the financial services industry is significant because financial services depend on personal information. The article argues that the international attempts to harmonize information practice standards and the national efforts to regulate information processing encourage divergence of national standards for financial services. It argues that regulatory flexibility and customization is …