Law Commons^™

Engines By Ge, Body By Houdini: State Secrets As A Procedural Restraint To The Resolution Of Disputes, Les Schiefelbein

Les Schiefelbein

Virtually every national government has a state secrets doctrine. The doctrine is best defined as “any information that, if disclosed publicly, would be reasonably likely to cause significant harm to the national defense or foreign relations of a government.”

Let me give state secrets some practical context and review how it is applied in the United Kingdom, the United States and France.

The best aviation description of my comments on state secrets is “Engines By GE, Body By Houdini.” The illusionist reference is an aviation descriptor of stealth airplanes whose invisibility to radar detection is like the state secret doctrine …

Rethinking The Context Of Hate Speech Regulation, Robert Kahn

Robert Kahn

In this essay I review Michael Herz and Peter Molnar (eds.) The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge University Press 2012). As I show in the review, the Herz and Molnar volume advances our understanding of comparative hate speech regulation in three ways. First, the essays suggest that local context has a role to play in understanding, assessing, and applying hate speech regulations, even in an age when online hate speech is pressuring states and regions to reach common solutions to these problems. Second, the essays rebut the commonly held premise that the United States …

Rescuing Arbitration In The Developing World: The Extraordinary Case Of Georgia, Steven Austermiller

Steven Austermiller

The country of Georgia has a long and interesting history with arbitration. From “telephone justice” to the criminal underworld to legitimacy, Georgian arbitration has survived many iterations. Now, as Georgia begins the EU accession process, it has a new arbitration law that incorporates international norms. This article analyzes the law, explores how arbitration has been implemented thus far, and discusses some of the challenges that remain. Drawing on his U.S. practice experience in arbitration and his work managing legal reform programs in Georgia and other countries, the author recommends some important changes to Georgia’s new arbitration regime. A particular area …

Proactive Cybersecurity: A Comparative Industry And Regulatory Analysis, Scott J. Shackelford, Amanda Craig, Janine Hiller

Scott Shackelford

This Article analyzes recent business realities and regulatory trends shaping the proactive cybersecurity industry. To provide a framework for our discussion, we begin by describing the historical development of the industry and how it has been shaped by the applicable law in the United States and other G8 nations. We then catalogue the proactive cybersecurity practices of more than twenty companies, focusing on four case studies that we consider in the context of polycentric “global security assemblages.” Finally, we assess the emergence of proactive cybersecurity norms, both within industry and international law, and consider the implications of this movement on …

Originalism In Puerto Rico: Original Explication And Its Relation With Clear Text, Broad Purpose And Progressive Policy, Jorge Farinacci-Fernós

Jorge Farinacci-Fernós

Originalism is neither inherently conservative nor exclusive to the United States. Puerto Rico, a self-governing U.S. jurisdiction, has been using a particular form of originalism as its main methodological tool for constitutional interpretation and adjudication since 1952. Puerto Rican originalism has several key traits. First, it's politically progressive, due to the framers' explicit progressive agenda which is palpable from the historical sources. Second, their intent is empirically verifiable, due to the formality and transparency of constitutional creation that generated a formal and elaborate record. Third, the constitutional record is considered the authoritative source of constitutional meaning. Fourth, the textual characteristics …

Abortion In South Africa And The United States: An Integrative, Contrastive Comparative Analysis Of The Effect Of Legal And Cultural Influences On Implementation Of Abortion Rights, Danielle Y. Blanks

Danielle Y Blanks

Despite similarly progressive abortion rights laws, women in South Africa and the U.S. experience completely different levels of access to legal and safe abortions. In this paper, I will seek to explain the reasons for this disparity by describing the ways in which natural law has influenced the application of law in the U.S. and South Africa while examining the role of cultural values in the realization of abortion rights. I will take an integrative approach to explain ideological similarities and a contrastive approach to denote the cultural differences that have led to a de facto marginalization of South African …

Orphans In Turmoil: How A Legislative Solution Can Help Put The Orphan Works Dilemma To Rest, Vicenç Feliú

Vicenç Feliú

The orphan works issue has continued to grow in the U.S. despite strong efforts to find a workable solution. Stake holders on both sides of the issue have proposed and opposed solutions and compromises that could have alleviated the problem, and we are still no closer to an agreement. This paper posits that the solutions offered in the proposed legislation of 2006 and 2008 provide a strong working foundation for a legislative answer to the issue. To make that answer workable, a new legislative effort would have to take into account the questions raised by stakeholders to the previous legislative …

Defamation Litigation Patterns Across The United States, England, And Australia, David Unwin

David Unwin

A good reputation is perhaps an individual’s most valuable asset. Yet it is capable of being destroyed in an instant. Defamation law recognizes and protects this interest by imposing tort liability. However, the freedom of speech is another bedrock legal principle. Imposing strict liability on any false, defamatory remark would unduly chill free speech. Thus, each national legal system must balance these two broad principles and reach a legal outcome which effectively protects an individual’s reputation without unduly burdening the exercise of speech.

This paper will first examine three jurisdictions’ defamation law jurisprudence: the United States, England and Wales, and …

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 …

Transformation Of Trust Ideas In Japan: Drafting Of The Trust Act 1922, Masayuki Tamaruya

Masayuki Tamaruya

No abstract provided.

Adequacy Of Representation In Argentina: Federal Supreme Court’S Case Law, Bills Pending Before Congress And The Preliminary Draft Of A New Civil Code, Francisco Verbic

Francisco Verbic

The paper describes how adequacy of representation has recently arrived to Argentina’s legal system in the field of representative litigation. First of all, in the FederalSupreme Court’s case law. Then, in some bills which are nowadays pending before Congress. Lastly, in the Preliminary Draft of a new Civil Code recently announced by the President and the Chief Justice of the Federal Supreme Court. I take a critical approach towards the issue, particularly because of the little attention paid to such a relevant aspect of representative proceedings

Blatant Bribery Or Locally Lawful?: Is The Foreign Corrupt Practices Act’S “Local Laws” Defense Extinct?, Erik J. King

Erik J King

Under the Foreign Corrupt Practices Act (FCPA), it is an affirmative defense if the payments in question were lawful under the written laws of a foreign country. This defense has been largely overlooked by commentators and used sparingly in the court system. This Note examines the utility of this defense, and finds that although the concept underlying the defense remains somewhat alive in certain types of foreign laws that could conceivably excuse a foreign investor, the defense has lost all practical value. U.S. judicial interpretations, multilateral efforts against similar exceptions in other anti-bribery laws, and the subsuming effect of other …

The Word Commons And Foreign Laws, Thomas O. Main

Thomas O Main

Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their …

Avoid Japanization, Nahoko Ono

Nahoko Ono

USPTO and academia are both recently keen to encourage further transparency of patent assignment recordation system. This article contends that excessive regulatory framework is likely to deter exploitation of patents as Japan fails to do so despite of its top-ranked patent producer in the world.

Consumer Class Actions In Argentina And Brazil. Comparative Analysis And Enforcement Of Foreign Judgments, Francisco Verbic

Francisco Verbic

No abstract provided.

What's Beneath The Graham Cracker?: The Potential Impact Of Comparative Law On The Future Of Juvenile Justice Reform After Graham V. Florida, David A. Shapiro

David A Shapiro

The United States continues to incarcerate children for longer periods than any other country. It remains perhaps the only country in the world to sentence juveniles to life without parole. It has violated the most basic of international legal conventions, including the United Nations Convention on the Rights of the Child (CRC). It is time to bring juvenile sentencing and reforms in line with the rest of the civilized world. There are more than two hundred different countries with their own juvenile sentencing and reform laws.

This article argues that reformers are better off looking to these countries directly than …

Israeli Case Of A Transformative Constitution, Moshe Cohen-Eliya

Moshe Cohen-Eliya

Transformative constitutions are typically post-traumatic; they signal a clear departure from the horrors of the past, as in the case of the constitutions of post-Nazi Germany and post-Apartheid South Africa. By their very nature, they presume an active role for the court that is delegated with its implementation. Over the past three decades, the Israeli Supreme Court has made significant reference to fundamental values, expanded its conception of rights and the scope of judicial review, and developed the notion of positive rights. It has signaled its willingness to make individuals subject to the duty to respect constitutional rights and has …

Rape Trauma, The State, And The Art Of Tracey Emin, Yxta M. Murray

Yxta M. Murray

Prosecutors use “rape trauma syndrome” evidence at rape trials to explain victims’ “counterintuitive” behaviors and demeanors, such as late reporting, denying their rapes, returning to the scenes of their attacks, and lack of emotional affect. Courts and experts, in instructions and testimony, usually describe victim reticence as a product of “shame” or “trauma.” Feminist critics of R.T.S. evidence posit that it is based on incomplete evidence, because most rapes are unreported. Furthermore, they object to its condescending, sexist, and colonial construction of rape victims and their emotions. In this Article, I respond to feminist critics by studying the work of …

Beyond Macro-Prudential Regulation: Three Ways Of Thinking About Financial Crisis, Regulation And Reform, Tamara Lothian

Tamara Lothian

This paper considers the debate about the "macro-prudential regulation" of finance in the context of a broader view of the relation of finance to the real economy. Five ideas are central to the argument. The first idea is that the two dominant families of ideas about finance and its regulation share a failure of institutional imagination. Neoclassical economists blame localized market and regulatory failures for the troubles of finance. Keynesians invoke the way in which the money economy may amplify cycles of despondency and euphoria. Neither current of thought recognizes that the institutions of finance in particular, and of the …

Bavarian Blondes Don't Need A Visa: A Comparative Law Analysis Of Ambush Marketing, Gerlinde Berger-Walliser, Melanie S. Williams, Bjorn Walliser, Mark Bender

Melanie S. Williams

This paper describes the problem of ambush marketing: the act of attempting to associate with an event without buying the rights to do so. From the perspective of the organizers and sponsors of large-scale media and athletic events, the problem is significant. More than $100 billion is spent annually on purchasing sponsorship rights and the associated promotions. For companies who have not paid for such rights to be able to imply an association with these high-profile events dilutes the value of that sponsorship. Despite the size of the problem, however, (and except for the special coverage many countries afford Olympic …

Democracy And The Western Legal Tradition, Mauro Bussani

Mauro Bussani

The availability of democracy is usually presented as a pre-requisite of any evaluation – be it political, economic or legal – of any country, and as an imperative to pursue (with or without Western help) for all societies that do not enjoy it. Yet, discussions about non-democratic systems, and the Western aspiration to transform them, often fail to take into account – as they actually should – the basic elements of Western democratic societies, the very fabric with which democracy is woven. The paper adopts a comparative law approach to the issue. It takes into account the historical, technical, and …

Vietnam, China, And The United States: The Regulatory Framework Of Mining Pollution And Water Quality, Heather Whitney

Heather Whitney

This paper compares the environmental, mining, and water quality policy and regulatory framework of three countries: Vietnam, China, and the United States. There are many similarities between China and Vietnam’s legal framework and environmental protection mechanisms, by virtue of the fact that they are both socialist countries, both authoritarian governments, and both in the midst of an industrial revolution. The United States intersects in some areas of water quality standards and technological controls of effluents with both countries, as well as certain enforcement measures. This is true especially in China, where the EPA has actively consulted the Chinese government in …

Exploring The Role Of Legitimacy And Identity In Framing Responses To Global Reforms In Socialist Transforming Asia, John S. Gillespie

John S Gillespie

Exploring the Role of Legitimacy and Identity in Framing Responses to Global Legal Reforms in Socialist Transforming Asia John Gillespie Abstract A bourgeoning literature about socialist transforming Asia (China and Vietnam) shows that economic development is possible without fully functioning legal systems based on laws and institutions derived from North America and Europe. What is less clear is whether over time the regulatory systems in these countries will evolve toward more economically efficient globalized forms of Western governance, as some commentators suggest, or follow a more complex pattern of convergence and divergence. This article advances the debate by investigating the …

Does Mass Product Tort Litigation Facilitate Or Hinder Social Legislative Reform? A Comparative Study Of Tobacco Regulation, Jeffrey S. Quinn

Jeffrey S Quinn

This Article, Does Mass Product Tort Litigation Facilitate or Hinder Social Legislative Reform? A Comparative Study of Tobacco Regulation, analyzes the competing arguments for and against the use of tort litigation as a means of creating social reform. The value of current scholarship is limited because authors frequently allow their biases to influence their conclusions. Authors in favor of public health reform argue in favor of using tort litigation to create social reform, while authors in favor of a strict separation of powers approach argue against using tort litigation to create social reform. This Article, however, synthesizes the scholarly debate …

How Securities Regulation Really Works: A Comparative Study Of The Regulatory, Principled, And Normative Reputational Approaches To Securities Regulation, Amy Aiq

Amy Wall

This paper compares international securities regulation through the lens of a structural and historical analysis. The regulatory, principled and normative reputational models of securities regulation as exemplified by the U.S., U.K. and China are discussed. A discussion of the foundations of securities markets lays the groundwork for understanding different underlying purposes of securities regulation. The paper follows the development of securities markets from the roots of the 17th century European trading companies, through the statist polices that created the bond markets, to the transatlantic crossing and the development of the investment banking system and creation of governmental agencies enforcing securities …

¿Viva La Data Protection? Chile As A Touchstone For The Future Of Information Privacy, Nicola C. Menaldo

Nicola C. Menaldo

This paper attempts to uncover a puzzle: although the traditional levers for strong privacy protection are present in Chile – a history of dictatorship, an information technology revolution, and strong trade with the European Union – its data protection laws are in fact very weak. What explains this apparent disconnect? This paper challenges the conventional wisdom: that Chile's weak data protection regime is the result of weak democratic institutions, collective action problems, or the prioritization of credit data protections. Instead, it argues that Chile's stunted regime results from a political culture in which privacy protections, generally, are traded off for …

Fragile Merchandise: A Comparative Analysis Of The Privacy Rights For Public Figures, Scott Shackelford

Scott Shackelford

Over a century after Warren and Brandeis first presented the right to U.S. jurists for their consideration, privacy has become a central player in U.S. law. But nations around the world, in particular the common and civil law nations of Europe that share similar legal cultures with the United States, are grappling with how best to strike a balance between the competing rights of privacy and freedom of expression—both of which are critical to the functioning of democratic society. Existing literature has not fully drawn from this reservoir of international experience to inform the debate about U.S. privacy rights. This …

Taking War Seriously: A Model For Constitutional Constraints On The Use Of Force, In Compliance With International Law, Craig Martin

Craig Martin

This article develops an argument for increased constitutional control over the decision to use armed force or engage in armed conflict, as a means of reducing the incidence of illegitimate armed conflict. In particular, the Model would involve three elements: a process-based constitutional incorporation of the principles of international law relating to the use of force (the jus ad bellum regime); a constitutional requirement that the legislature approve any use of force rising above a de minimus level; and an explicit provision for limited judicial review of the decision-making process. The Model is not designed with any one country in …

A Pluralist Approach To Mixed Jurisdictions, Mauro Bussani

Mauro Bussani

The paper claims that ‘mixity’ is an inherent quality of almost any legal systems, and not only of those that, for historical reasons, inherited legal features from the civil and common law traditions. From this ‘pluralistic’ point of view, all the experiences where Western legal models interact among themselves, or with religious, indigenous or customary laws, deserve to be included into the ‘mixed’ category. Such an approach reveals itself as a powerful cognitive tool to advance comparative knowledge about legal systems. In particular, it enables one to better understand: (a) the dynamism of any given legal system – be it …

A Balancing Act? The Rights Of Donor-Conceived Children To Know Their Biological Origins, Brigitte J. Clark Dr

Brigitte J Clark Dr

Internationally, donor-conceived children’s rights to know their biological origins have been recognised to some extent by the jurisprudence of the European Court of Human Rights (ECHR). With the drafting of the Article 7 (1) of the United Nations Convention on the Rights of the Child (UNCRC), as supplemented by Article 8, such children’s rights to know their biological origins whist they are children, and not only later as adults, were acknowledged for the first time, though not explicitly. Anonymous sperm donation is now banned in eleven jurisdictions, including Sweden and England and Wales. By contrast, France still does not expressly …