Law Commons^™

Promoting An Independent Judiciary As A Rule Of Law Principle: A Brief Commentary On The Supreme Court Of Pakistan, Kamaal Zaidi

Kamaal Zaidi

The rule of law is often difficult to establish in developing nations characterized by frequent political changes and unstable events that affect the separation of powers between the three branches of government – the executive, legislature, and judiciary. In particular, the integrity of the judiciary is often damaged by influences from the executive and legislative branches in that core democratic principles are promoted, including civil liberties, the supremacy of law, law and order, and transparency and accountability among government actors. In Pakistan, turbulent political events over the years have irreparably damaged the ability of the Supreme Court of Pakistan to …

Direct Application Of International Commercial Law In Chinese Courts: Intellectual Property, Trade, And International Transportation, Jie Huang

Jie Huang

Different from scholarship that focuses on the relationship between China and International Law regarding territory, armed conflicts, human rights violations, this article explores the relationship between China and International Law in a commercial setting. It explores how Chinese courts apply international commercial law in adjudicating cases involving foreign factors. Moreover, this article goes beyond contemporary scholarship that concerns international commercial law and China but only focuses on the text of Chinese statutes and judicial interpretations: it elaborates how courts apply statutes and judicial interpretations in actual adjudications through cases studies. By covering cases decided by the Supreme People’s Court and …

Getting Property Right: Informal Mortgages In The Japanese Courts, Frank George Bennett

Frank George Bennett Jr.

In Japan's civil law property system, courts recognize a form of extra-statutory security, the jōto tanpo or “title-transfer security interest”, that is created by conveying legal title to the creditor, with a promise to restore title to the debtor upon repayment. This commercial practice pre-dates the deployment of the nation's modern system of alienable title, and as such its modern treatment in the courts provides an informative window on forces that shape a property system undergoing rapid change in the face of economic expansion. When the Civil Code was enacted at the end of the 19th century, recognition of “title-transfer …

Workplace Electronic Privacy Protections Abroad: The Whole Wide World Is Watching, William A. Herbert

William A. Herbert

Legal and public policy ideas and concepts are known to traverse national borders. The rapidity of this multinational exchange of ideas has been substantially enhanced through the technological revolution over the past two decades. How a nation adopts or rejects particular ideas and concepts reflects on its particular history, culture and priorities. The establishment of legal protections for privacy against intrusions by governments, employers, companies and individuals represents a concept that has been adopted in different ways by other nations. This article will focus on how the European Union and certain Western countries have approached the issue of protecting individual …

Binding The Dogs Of War: Japan And The Constitutionalizing Of Jus Ad Bellum, Craig Martin

Craig Martin

There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest that constitutional design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance …

An 'Unconventional Truth': Conflict Of Laws Issues Arising Under The Cisg, Antonin I. Pribetic

Antonin I. Pribetic

This article discusses the applicability of the CISG from a Canadian conflict of laws perspective - both in terms of jurisdiction and choice of law. The analysis is framed by providing an outline of the key jurisdictional and choice of law principles developed within Canadian jurisprudence. Following a brief contextual overview of the CISG, Articles 1(1) (a) and 1(1) (b) and Article 6 of the CISG are highlighted, with specific reference to recent Canadian and foreign judicial decisions and foreign arbitral awards involving Canadian parties. The article concludes with a clarion call to justice stakeholders, particularly, Canadian commercial lawyers and …

Families Redefined: Kinship Groups That Deserve Benefits, Jane E. Cross, Charlene Smith, Nan Palmer

Jane E Cross

In Families Redefined: Kinship Groups that Deserve Benefits, the authors examine 1) the nature of kinship families, 2) the benefits accorded to married couples, 3) kinship families that lack protection and benefits, 4) the impact of denying kinship protection and benefits, 5) the use of contract law in kinship relationship and 6) using legislation to benefit kinship relationships.

This exploration of expanding family law protections to kinship groups addresses a series of interrelated topics. The first two sections of the article explore the characteristics and creation of kinship families in different societies. The third section addresses the legal benefits provided …

Termination Of A Lease Contract: General View From Czech And Illinois Law, Carissa Meyer, Marketa Selucka, Johan Schweigl

Carissa Meyer

Abstract:

The article’s main focus is on the termination of a lease contract from the perspective of Illinois law, which is a part of the common law American legal system, and Czech Republic law, which is a part of the continental European system. The article seeks to highlight the similarities and differences between each system, and to look at how a lease contract is terminated in each respective legal system. The article specifically focuses on the rights of both the landlord and tenant in both systems. The article also focuses on changes made to the Czech Civil Code since the …

Hanging In A Balance: Freedom Of Expression And Religion, Puja Kapai, Anne Sy Cheung

Puja Kapai

When the liberty to freely express oneself is at odds with another’s right to freedom of religion, we are confronted with the classic dilemma of choosing between two equally fundamental, constitutionally and internationally protected rights. The contours of the said two rights however, are far from clear. Whilst freedom of expression is not an absolute right, its limits are controversial. Equally, while it is undisputed that freedom of religion is an internationally protected human right enshrined in various international instruments, there is no comprehensive international treaty which addresses as its subject the content and extent of the right of freedom …

Free Speech And Holocaust Denial, Russell L. Weaver

Russell L. Weaver

Civil Law Compromise, Common Law Accord And Satisfaction: Can The Two Doctrines Coexist In Louisiana?, Sally Brown Richardson

Sally Brown Richardson

Prior to 2007, Louisiana law was wrought with confusion regarding the civil law doctrine of compromise and the common law doctrine of accord and satisfaction. Although the Louisiana Civil Code only expressly provided for parties to end or prevent litigation through compromise, some Louisiana courts also utilized accord and satisfaction to determine if parties had settled their disputes. In jurisprudentially incorporating the common law institution, courts were inconsistent as to whether the doctrine led to the same result as the doctrine of compromise. Such inconsistency was troublesome because courts gave no guidance as to when the civilian doctrine of compromise …

Constitution By Compromise, Howard Schweber, Amnon Cavari

Howard Schweber

The question of empowering the court and the limits of constitutional protection are at the heart of the debate over constitutional design in Israel. Lacking a comprehensive written constitution, Israel nonetheless has a set of basic laws which encompass many of the functions of a constitutional text making it a near-complete constitution. Nonetheless, there continues to be considerable support for the idea of a single, formally adopted constitutional text. Recently, several proposals have been brought to the forefront of political discussions through the actions of various interest groups outside the government, and energized and committed efforts by government officials and …

Much Ado About Non-State Actors: The Vanishing Relevance Of State Affiliation In International Criminal Law, John P. Cerone

John P Cerone

Much has been made recently of the deficiencies of international law in grappling with violence perpetrated by non-state actors. From transnational terrorist networks to private security contractors (PSCs), organizations that are not officially part of the apparatus of any state are increasingly engaged in protracted episodes of intense violence, giving rise to questions of accountability under international law. Does international law provide rules applicable to such conduct? Once the individual has been deemed a subject of positive international law, the requirement of state affiliation is no longer essential to analytical coherence. The issue becomes simply whether international law should directly …

The Clash Of Obligations: Exercising Extraterritorial Jurisdiction In Conformance With Transitional Justice, Christen L. Broecker

Christen L Broecker

With growing frequency, courts in the United States and Europe have been placed in the unenviable position of being asked to weigh the dictates of international criminal and human rights law against the risk that enforcing that law may ignite conflict or threaten the stability of fragile governments abroad. These States have increasingly authorized the use of extraterritorial jurisdiction to allow their courts to adjudicate civil and criminal and civil disputes stemming from major human rights atrocities committed abroad. Yet as a result, their courts have been confronted with the dilemma of how to enforce the dictates of international criminal …

Selling Goods Internationally: The Scope Of The 1980 United Nations Convention On Contracts For The International Sale Of Goods (Cisg), Susan J. Martin-Davidson

Susan J Martin-Davidson

What is an international sale of goods? The answer to this question is critically important to trillions of dollars worth of transactions that are now governed by the UN Convention on Contracts for the International Sale of Goods. Lawyers facing an issue in the interpretation of the CISG must consult a daunting body of conflicting and minimally informative resources in many languages. The interpretive difficulties are particularly acute in deciding the scope of the Convention and the transactions to which it applies. This article examines the unresolved ambiguities in terms such as “sale of goods,” “place of business,” and “validity,” …

The Story Of Article 9 Of The Japanese Constitution, Kenneth L. Port

Kenneth L. Port

Abstract Japan has been experiencing an odd constitutional challenge for over 60 years. In Article 9 of the Constitution, which Americans drafted after World War II, Japan renounces belligerent war. However, within the society, multiple meanings of Article 9 have developed. Each “story” of Article 9 seems as legitimate as the next because the Supreme Court has abdicated their responsibility to resolve this important constitutional issue by calling Article 9 a non-justiciable, political question. Therefore, the only entity that has been silent on what Article 9 means is the Supreme Court. As a result, there are many, many interpretations of …

The Challenges Of Democratic Consolidation In Africa, Okechukwu Oko

Okechukwu Oko

This paper, using Nigeria as a case study, examines the challenges of democratic consolidation in Africa. It will critically and objectively identify the problems and challenges of democratic consolidation in Africa and offer suggestions that will move Africa further along the path of constitutional democracy. It proceeds from the basic proposition that Africans’ thirst for genuine democracy is at present unslaked and perhaps unslakeable under the current circumstances in Africa. Democracy is off kilter in Nigeria, and indeed, most parts of Africa and appears to be spiraling over the edge into dictatorship, and perhaps even social disorder, fatally assaulted by …

The Meaning, Measure, And Misuse Of Standards Of Review, Amanda J. Peters

Amanda J Peters

Standards of review are critical to appellate review because they set limitations upon the appellate court's review process. In doing so, standards of review balance judicial authority, make judicial review more efficient, standardize the review process, and give notice to parties who wish to appeal their cases. However, these policies and their effects are diminished when appellate judges misuse or ignore standards of review.

This article examines the theories that led to the creation of standards of review and identifies four ways that appellate courts misuse standards of review. It analyzes over 8,000 cases from Texas and California, along with …

The Global Advocate: From Ethical Anarchy To Discernable Duties, Catherine A. Rogers

Catherine A Rogers

This Article identifies the emergence of "global advocates" as an important force on the world legal stage. By definition and design, these global advocates operate in a professional “space” that is distinct from the jurisdiction in which they are licensed and stretches beyond the jurisdictional boundaries of any particular tribunal. They maneuver in the nooks and crannies, the overlap and the inconsistencies between legal systems. Legal arbitrage is a core feature of their daily practice, and perhaps one of their most essential professional skills. This detachment from their licensing jurisdiction raises fundamental questions about the origin and object of their …

The Role Of Private Sector Investment In International Microfinance And The Implications Of Domestic Regulatory Environments, William A. Langer

William A Langer

The Role of Private Sector Investment in International Microfinance and the Implications of Domestic Regulatory Environments

By William Langer

Microfinance – the practice of providing small, working capital loans and other financial services to poor individuals unable to obtain access to commercial sources of credit – has been able to transform the lives of over 100 million microentrepreneurs and their families in various regions throughout the world. Despite this impressive achievement, microfinance currently reaches only 10% of the estimated demand for microfinance services, comprised of approximately 1 to 1.5 billion self-employed poor persons worldwide. Practitioners agree that in order to …

Staking Claims Against Foreign Defendants In Canada: Choice Of Law And Jurisdiction Issues Arising From The In Personam Exception To The Mocambique Rule For Foreign Immovables, Antonin I. Pribetic

Antonin I. Pribetic

Canadian courts have struggled in distinguishing between in personam jurisdiction and subject-matter jurisdiction (and specifically the Mocambique rule). In particular, they appear to overlook the two-fold jurisdictional requirement that in order to proceed in a given case they must have both types of jurisdiction - in personam and subject-matter - and that when jurisdictional challenges arise due to the fact that the dispute deals with foreign immovables Canadian courts, influenced by the post-Morguard focus on in personam jurisdiction, are dealing with the foreign land question under the rubric of in personam jurisdiction, not under the traditional heading of subject-matter jurisdiction. …

Comparing Judicial Compensation: Apples, Oranges, And Cherry-Picking, Matthew W. Wolfe

Matthew W. Wolfe

United States Supreme Court Chief Justice John Roberts describes the American judiciary as the envy of other constitutional democracies. But in one respect, the judiciary apparently trails others: judicial pay. Citing higher salaries of judges in other countries, Chief Justice Roberts and Associate Justices Stephen Breyer and Samuel Alito have all argued that inadequate judicial pay leads to a decline in judicial performance and quality. Judicial pay advocates apparently make these comparisons to emphasize that low judicial salaries “threaten” judicial quality and independence or, alternatively, that high judicial salaries “ensure” quality and independence. But the argument is incomplete, relying upon …

The Emergence Of Transnational Constitutionalism: Its Features, Challenges And Solutions, Wen-Chen Chang, Jiunn-Rong Yeh

Wen-Chen Chang

Globalization and regional remapping have made unprecedented challenges to traditional understandings of constitutional and international laws. Not only constitutions may function across national borders but also international treaties and regional cooperative frameworks may deliver constitutional or quasi-constitutional functions. This paper aims at theorizing recent developments of transnational constitutionalism by examining its features, functions and characteristics. We find that transnational constitutionalism features transnational constitutional arrangements, transnational judicial dialogues and global convergence of national constitutions. Notwithstanding main functions in facilitating a global market, the development of transnational constitutionalism nevertheless undermines accountability, democracy and rule of law at both domestic and transnational levels. …

Divided By A Common Legal Tradition, Intisar Rabb Phd

Intisar A. Rabb

No abstract provided.

With A Little Help From The Courts: Mark Tushnet On Judicial Review Of Social And Economic Rights, Adam Shinar

Adam Shinar

This is a review of Mark Tushnet's "Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law". The review outlines the main arguments in the book and then moves to elaborate on two preconditions, which, I think, are necessary for Tushnet's project to succeed – the existence of a strong civil society and an institutional willingness to implement social welfare rights. In addition, this review seeks to situate the book within Tushnet's broader constitutional theory project. In particular, the review attempts to reconcile this work with Tushnet's "Taking the Constitution Away from the Courts", a work …

Reassessing The Dialogic Possibilities Of Weak-Form Bills Of Rights, Christine A. Bateup

Christine A Bateup

In recent years, weak-form bills of rights have generated much excitement in contemporary constitutional scholarship because they are believed to create a new balance between parliamentary and judicial supremacy based on inter-branch “dialogue” between courts and legislatures. Few scholars, however, have examined the foundational question of whether judges and legislators can actually be expected to behave in a way that realizes the dialogic potential of weak-form instruments. This Article takes a new approach to this question, applying the insights of positive theory to engage in a comprehensive assessment of the behavior we can realistically expect of courts and legislatures in …

Implications Of The Uk Companies Act 2006 For Institutional Investors And The Corporate Social Responsibility Movement, Gordon L. Clark, Eric R. W. Knight

Eric R Knight

Non-governmental organisations, activists, and the public-at-large hold large firms accountable on many issues including their environmental footprints and the social standards of their suppliers around the world. For those coming from European social democratic traditions, stakeholders have a legitimate voice in the affairs of the corporation especially in two-tiered governance regimes that separate supervision from management. Notwithstanding attempts to re-write their proper roles and responsibilities, the Anglo-American corporation is widely believed to be the medium for the accumulation of shareholder value.

Recently, however, a counter-argument has emerged suggesting that the UK Companies Act 2006 broke with this tradition to embrace …

Gender And The Chinese Legal Profession In Historical Perspective: From Heaven And Earth To Rule Of Woman?, Mary Szto

Mary Szto

This article first discusses the current phenomenon of women judges and male lawyers in China. Many women have joined the ranks of the Chinese judiciary because this is considered a stable job conducive to caring for one’s family, as opposed to being a lawyer, which requires business travel and heavy client entertaining. I then trace this phenomenon to ancient views of Heaven, earth, gender and law in China. In this yin/yang framework, men had primary responsibility for providing sustenance for both this life and the life to come and women were relegated to the “inner chambers”. Also, law was secondary …

Two To Tango, One In Limbo: A Comparative Analysis Of Fathers' Rights In Infant Adoptions, Margaret Ryznar

Margaret Ryznar

Many American and English courts today permit infant adoptions without notifying or seeking the consent of biological fathers. However, children’s best interests would be better served by recognizing their father-child relationship, instead of institutionally denying it. Any legal approach that ignores the biological father devalues the importance of a child’s placement in the paternal family unit, the significance of the medical history on the father’s side, the emotional link between a father and his child, and the father’s legal right to his own child. This comparative law Article therefore argues, using the American and English legal systems as illustrative examples, …

American Balancing And German Proportionality: The Historical Origins, Iddo Porat, Moshe Cohen-Eliya

Iddo Porat

American Balancing and German proportionality: The Historical Origins Iddo Porat and Moshe Cohen-Eliya Abstract American and European constitutional systems have two similar doctrines: balancing and proportionality. Both resemble each other in important aspects and are often discussed in tandem. However, balancing has never attained the status of an established doctrine in American constitutional law in the same way that proportionality has in European constitutional law. Moreover, balancing has always been the subject of fierce criticism and is very much a controversial concept in American constitutional law. European proponents of proportionality are perplexed by this American resistance which is sometimes viewed …