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Comparative and Foreign Law

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Can The West Learn From The Rest?' The Chinese Legal Order's Hybrid Modernity, Nicholas Howson Dec 2015

Can The West Learn From The Rest?' The Chinese Legal Order's Hybrid Modernity, Nicholas Howson

Nicholas Howson

I am asked to present on the "shortcomings of the Western model of legality based on a professionalized, individualistic and highly formalistic approach to justice" as a way to understanding if "the West can develop today a form of legality which is relational rather than based on litigation as a zero sum game, learning from face to face social organizations in which individuals understand the law" - presumably in the context of the imperial and modem Chinese legal systems which I know best as a scholar and have lived for many years as a resident of the modem identity of the ...


The Study Of Chinese Law In The United States: Reflections On The Past And Concerns About The Future, Stanley Lubman Dec 2015

The Study Of Chinese Law In The United States: Reflections On The Past And Concerns About The Future, Stanley Lubman

Stanley Lubman

I first survey the development and current state of the field by reviewing American scholarship on some major areas of Chinese law from those early days up to the present. Then, against this background, I comment on the current scene and address the challenges that Chinese law continues to present to Western attempts at understanding China.


China's Judicial System And Judicial Reform, Nicholas Howson Dec 2015

China's Judicial System And Judicial Reform, Nicholas Howson

Nicholas Howson

The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and ...


How China Plans To Blacklist Financially Unstable Citizens, Caren Morrison Dec 2015

How China Plans To Blacklist Financially Unstable Citizens, Caren Morrison

Caren Myers Morrison

No abstract provided.


China's Plan To Put Two-Faced Citizens On Credit Blacklist Isn't All That Foreign, Caren Morrison Dec 2015

China's Plan To Put Two-Faced Citizens On Credit Blacklist Isn't All That Foreign, Caren Morrison

Caren Myers Morrison

No abstract provided.


Beyond Cartoons: There's A Lot We Can Learn About Ourselves From The Discomfort Of Others, Says Law Professor Susan Drummond, Susan G. Drummond Oct 2015

Beyond Cartoons: There's A Lot We Can Learn About Ourselves From The Discomfort Of Others, Says Law Professor Susan Drummond, Susan G. Drummond

Susan G. Drummond

No abstract provided.


International Intellectual Property, Access To Health Care, And Human Rights: South Africa V. United States, Winston Nagan Aug 2015

International Intellectual Property, Access To Health Care, And Human Rights: South Africa V. United States, Winston Nagan

Winston P Nagan

This Article examines the question of access to patented medicines in international law. It analyzes the extent to which international agreements may lawfully limit affordable versions of these medicines that may be available through parallel imports or compulsory licensing procedures. It considers the concept of intellectual property rights from a national and international perspective to determine how these rights must be sensitive to matters of national sovereignty when extraordinary, life-threatening diseases afflict societies in catastrophic ways. This Article suggests that viewing property (including intellectual property) as a human right requires that its scope be delimited and understood in the context ...


The Greening Of Canadian Cyber Laws: What Environmental Law Can Teach And Cyber Law Can Learn, Sara Smyth Aug 2015

The Greening Of Canadian Cyber Laws: What Environmental Law Can Teach And Cyber Law Can Learn, Sara Smyth

Sara Smyth

This article examines whether Canadian environmental law and policy could serve as a model for cyber crime regulation. A wide variety of offences are now committed through digital technologies, including thievery, identity theft, fraud, the misdirection of communications, intellectual property theft, espionage, system disruption, the destruction of data, money laundering, hacktivism, and terrorism, among others. The focus of this Article is on the problem of data security breaches, which target businesses and consumers. Following the Introduction, Part I provides an overview of the parallels that can be drawn between threats in the natural environment and on the Internet. Both disciplines ...


All Americans Not Equal: Mistrust And Discrimination Against Naturalized Citizens In The U.S., Alev Dudek Aug 2015

All Americans Not Equal: Mistrust And Discrimination Against Naturalized Citizens In The U.S., Alev Dudek

Alev Dudek

Approximately 13 percent of the U.S. population — nearly 40 million — is foreign-born, of which about 6 percent are naturalized U.S. citizens. Given the positive image associated with immigrants — the “nation of immigrants” or “the melting pot” — one would assume that all Americans in the U.S.A., natural born or naturalized, have equal worth as citizens. This, however, is not necessarily the case. Despite U.S. citizenship, naturalized Americans are seen less than equal to natural born Americans. They are often confused with “foreign nationals.” Moreover, their cultural belonging, allegiance, English-language skills, as well as other qualifications, are ...


Regulatory Effectiveness In Ofcs, Andrew Morriss, Clifford Henson Jul 2015

Regulatory Effectiveness In Ofcs, Andrew Morriss, Clifford Henson

Andrew P. Morriss

The claim that OFCs are lax regulators has two weaknesses. First, it ignores differences between OFCs and onshore jurisdictions that influence the effectiveness of regulatory measures, such as their relative need to protect retail investors and the effectiveness of informal constraints. Second, leading OFCs deploy resources that are comparable to leading onshore jurisdictions by many measures.


Comparative Legal Traditions In A Nutshell, Paolo Carozza, Mary Glendon, Michael Wallace Gordon Jun 2015

Comparative Legal Traditions In A Nutshell, Paolo Carozza, Mary Glendon, Michael Wallace Gordon

Paolo G. Carozza

An introduction to comparative law written from the American lawyer’s viewpoint rather than that of the European civil law lawyer. This expert discussion concentrates on the three major legal traditions of the West: civil, common, and socialist. Subjects covered include legal structures in civil law nations; legal actors in civil law tradition; procedure; substantive law; sources of law; judicial process; and rules. Also contains chapters on the European Union and the European human rights system.


Comparative Legal Traditions In A Nutshell. 3rd Edition., Paolo Carozza, Mary Glendon, Colin Picker Apr 2015

Comparative Legal Traditions In A Nutshell. 3rd Edition., Paolo Carozza, Mary Glendon, Colin Picker

Paolo G. Carozza

An introduction to comparative law written from the American lawyer’s viewpoint rather than that of the European civil law lawyer. This expert discussion concentrates on the three major legal traditions of the West: civil, common, and socialist. Subjects covered include legal structures in civil law nations; legal actors in civil law tradition; procedure; substantive law; sources of law; judicial process; and rules. Also contains chapters on the European Union and the European human rights system.


Comparative Legal Traditions: Text, Materials, And Cases On Western Law. 3rd Edition., Paolo Carozza, Mary Glendon, Colin Picker Apr 2015

Comparative Legal Traditions: Text, Materials, And Cases On Western Law. 3rd Edition., Paolo Carozza, Mary Glendon, Colin Picker

Paolo G. Carozza

This new edition includes some significant revisions since the last edition was published in 1994. The new edition includes: A greater emphasis on Public Law in the Continental and Common law traditions; More coverage of the impact of the regional European law (EC EU and ECHR) on the legal traditions;Some updated Problems (including one concerning Mixed Jurisdictions); and Numerous updates to the Common Law Tradition materials in light of the many significant reforms in England over the last ten years.


Comparative Environmental Constitutionalism, Erin Daly, James May Mar 2015

Comparative Environmental Constitutionalism, Erin Daly, James May

Erin Daly

As more and more countries around the globe are amending their constitutions to recognises environmental rights and duties relating to air, water, the use of natural resources, sustainability, climate change, and more, courts are increasingly engaging with these provisions and developing a common constitutional law of environmental rights. This article examines this growing jurisprudence and surveys the central axes around which debates about environmental constitutionalism revolve. First, we examine whether environmental rights are more suitably advanced at the international level or at the national level of constitutional law, as is increasingly the case; the former offers two alternatives—protecting the ...


Notes From A New Underground: The Intersection Of Russian Orthodoxy, Religious Liberty, Lgbt Rights, And State Authority, John Ehrett Dec 2014

Notes From A New Underground: The Intersection Of Russian Orthodoxy, Religious Liberty, Lgbt Rights, And State Authority, John Ehrett

John Ehrett

Current laws in the Russian Federation impose sanctions against both speech deemed offensive to Russia’s traditional religious groups, and speech considered “propaganda” of the lesbian, gay, bisexual, and transgender (LGBT) community. This Featured Note offers a contemporary examination of the historical, cultural and political forces underlying these ongoing trends, and offers an interdisciplinary consideration of issues surrounding the intersection of liberty of religious expression with liberty of LGBT expression in Vladimir Putin’s Russia. This is historically contextualized through consideration of the political integration of church and state as a contributing factor toward limitations on these political freedoms. Ultimately ...


Elite Institutionalism And Judicial Assertiveness In The Supreme Court Of India, Manoj Mate Dec 2014

Elite Institutionalism And Judicial Assertiveness In The Supreme Court Of India, Manoj Mate

Manoj S. Mate

This article examines judicial challenges to central government power in the Supreme Court of India by analyzing activism and assertiveness in fundamental rights decisions from 1977 to 2007. Based on field research and contextual analysis of politically significant decisions, the article traces patterns of judicial assertiveness in politically significant fundamental rights decisions. During this era, the Court was selectively assertive in challenging the central government in fundamental rights cases. This article provides an explanatory account of the motives and factors that drove the Supreme Court of India‘s selective activism and assertiveness in politically significant fundamental rights decisions. It argues ...


Foreword: Transdisciplinary Conflicts Of Law, Ralf Michaels, Karen Knop, Annelise Riles Dec 2014

Foreword: Transdisciplinary Conflicts Of Law, Ralf Michaels, Karen Knop, Annelise Riles

Annelise Riles

This introduction to our co-edited special issue of Law and Contemporary Problems addresses how interdisciplinary studies might contribute to the revitalization of the field of Conflict of Laws. The introduction surveys existing approaches to interdisciplinarity in conflict of laws - drawn primarily from economics, political science, anthropology and sociology. It argues that most of these interdisciplinary efforts have remained internal to the law, relating conflicts to other legal spheres and issue areas. It summarizes some of the contributions of these projects but also outlines the ways they fall short of the full promise of interdisciplinary work in Conflicts scholarship, and indeed ...


The European Pasteurization Of French Law, Mitchel Lasser Dec 2014

The European Pasteurization Of French Law, Mitchel Lasser

Mitchel Lasser

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 ...


Property As A Fundamental Constitutional Right? The German Example, Gregory Alexander Dec 2014

Property As A Fundamental Constitutional Right? The German Example, Gregory Alexander

Gregory S Alexander

No abstract provided.


The Discursive Failure In Comparative Tax Law, Omri Marian Nov 2014

The Discursive Failure In Comparative Tax Law, Omri Marian

Omri Y Marian

Tax comparatists tend to bemoan the grim status of their chosen field. Complaints are aimed both at the scarcity of decent comparative legal tax scholarship, and at the lack of a theoretical foundation for the study of comparative tax law. The purpose of this Article is to portray a more sanguine, yet critical, view of this field. Sanguine, since a sympathetic reading of contemporary comparative tax scholarship demonstrates that there is more than enough such scholarship to generate a lively debate on comparative tax works and their methodologies. Critical, since all of these works fail to produce even the faintest ...


Voting By Elderly Persons With Cognitive Impairment: Lessons From Other Democratic Nations, Jason Karlawish, Richard Bonnie Nov 2014

Voting By Elderly Persons With Cognitive Impairment: Lessons From Other Democratic Nations, Jason Karlawish, Richard Bonnie

Jason Karlawish

No abstract provided.


L'Estoppel Et La Protection De La Confiance Légitime: Eléments D'Un Renouveau Du Droit De La Responsabilité (Droit Anglais Et Droit Français), Olivier Moréteau May 2014

L'Estoppel Et La Protection De La Confiance Légitime: Eléments D'Un Renouveau Du Droit De La Responsabilité (Droit Anglais Et Droit Français), Olivier Moréteau

Olivier Moréteau

When studied in its historical dimension, the English doctrine of estoppel does not anymore appear like a rule of evidence but like a rule of substantive law. It precludes a person from denying a representation he has made whenever another person has been detrimentally relying on the truth of this representation. Estoppel can then be featured as a key concept taking place at the core of the law of obligations, together with the notions of tort, contract, and restitution. Within this province of the law, judges protect the reliance of parties reasonably acting on the faith of other parties’ conduct ...


Protecting Workers As A Matter Of Principle: A Latin American View Of U.S. Work Law (With S. Gamonal C.), César Rosado Marzán Dec 2013

Protecting Workers As A Matter Of Principle: A Latin American View Of U.S. Work Law (With S. Gamonal C.), César Rosado Marzán

César F. Rosado Marzán

Scholars have noted that judicial conservatism has eroded labor and employment law (hereinafter referred to as “work law”) in the U.S. and elsewhere. The Roberts Court has kept in line with such conservatism, perhaps with sharpened audacity, deciding a number of key work law cases in the favor of employers. Moreover, the current seemingly pro-employer judicial hue over recent work law cases comes at the heels of recent legal scholarship calling for a rethinking of the “idea of labor law,” the demise of the standard employment contract, and an upsurge in labor precarity. Work law, which has always been ...


Conclusion — The Migration Of Legal Ideas: Legislative Design And The Lawmaking Process, Robert Tsai Dec 2013

Conclusion — The Migration Of Legal Ideas: Legislative Design And The Lawmaking Process, Robert Tsai

Robert L Tsai

This is the conclusion for an edited volume on legislative usage of foreign and international law, N. Lupo & L. Scaffardi, Legal Transplants and Parliaments: A Possible Dialogue Amongst Legislators? (2014). I assess the general turn in comparative law studies towards the behavior of elected officials, as well as the preference for increased formality in the use of foreign law. The essays in this book analyze the legal experiences of Brazil, Namibia, Australia, South Africa, Spain, the European Union, China, Canada, Portugal, the United Kingdom, the United States, and Italy. Many of these countries (but not all, especially the U.S ...


Beyond Judicial Populism, Anil Kalhan Dec 2013

Beyond Judicial Populism, Anil Kalhan

Anil Kalhan

No abstract provided.


Anatomy Of Dissent In Islamic Societies, Ahmed Souaiaia Dec 2013

Anatomy Of Dissent In Islamic Societies, Ahmed Souaiaia

Ahmed E SOUAIAIA

The 'Arab Spring' that began in 2011 has placed a spotlight on the transfer of political power in Islamic societies, reviving old questions about the place of political dissent and rebellion in Islamic civilization and raising new ones about the place of religion in modern Islamic societies.

In Anatomy of Dissent in Islamic Societies, Ahmed E. Souaiaia examines the complex historical evolution of Islamic civilization in an effort to trace the roots of the paradigms and principles of Islamic political and legal theories. This study is one of the first attempts at providing a fuller picture of the place of ...


Q&A: “The Sc Has Treated Judicial Independence As A Static Concept”, Anil Kalhan Dec 2013

Q&A: “The Sc Has Treated Judicial Independence As A Static Concept”, Anil Kalhan

Anil Kalhan

No abstract provided.


The World’S Youngest Political Prisoner, Richard Klein Nov 2013

The World’S Youngest Political Prisoner, Richard Klein

Richard Daniel Klein

Every participant at an international human rights conference in June 1998 received a small pamphlet published by Tibetan supporters of Tibetan Buddhism's highest-ranking figure, the Dalai Lama. Entitled "The World's Youngest Political Prisoner," the pamphlet makes a plea for support for a young boy, now nine years old, who the Chinese government has allegedly kidnapped and detained. The Dalai Lama, who has been living in exile for forty years, claims the boy is the eleventh reincarnation of the Panchen Lama, the second holiest individual in Tibetan Buddhism. This battle over the identification of the reincarnation of a holy ...


Kosovo's War Victims: Civil Compensation Or Criminal Justice For Indentity Elimination?, Irene Scharf Nov 2013

Kosovo's War Victims: Civil Compensation Or Criminal Justice For Indentity Elimination?, Irene Scharf

Irene Scharf

This Article is presented in three Parts. The first Part examines the likelihood that the displaced war victims could receive some type of civil compensation for their losses through the local courts in Yugoslavia. Part II scrutinizes the basic international human rights doctrines and systems of enforcement to determine whether they may offer remedies for the victims of identity elimination. Part III explores the likelihood that, through the Yugoslav Tribunal, those responsible for identity elimination may be held criminally responsible for their actions in Kosovo.


Courting Power, Anil Kalhan Oct 2013

Courting Power, Anil Kalhan

Anil Kalhan

No abstract provided.