Law Commons^™

The Right To Food And Buyer Power, Aravind Ganesh

Aravind Ganesh

Modern global food supply chains are characterised by extreme levels of concentration in the middle of those chains. This paper argues that such concentration leads to excessive buyer power, which harms the consumers and food producers at the ends of the supply chains. This paper argues that the harms suffered by farmers are serious enough as to constitute violations of the international human right to food as it is expressed in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Political Rights, and further argues that world competition law regimes cannot ignore these human rights …

Acontextual Judicial Review, Louis Michael Seidman

Louis Michael Seidman

Is constitutional judicial review a necessary component of a just polity? A striking feature of the current debate is its tendency to proceed as if the question could be answered in the same way always and everywhere. Defenders of constitutional review argue that is a conceptually necessary feature of constitutionalism, the rule of law, and the effective protection of individual rights. Critics claim that it is necessarily inconsistent with progressive politics and democratic engagement. Largely missing from the debate is a fairly obvious point: Like any other institution, constitutional review must be evaluated within a particular temporal, cultural, and political …

Uncitral, Security Rights And The Globalisation Of The Us Article 9, Gerard Mccormack Professor

Gerard McCormack

Abstract – “UNCITRAL, Security Rights and the globalisation of the US Article 9” UNCITRAL, the United Nations Commission on International Trade Law, has recently produced a Legislative Guide on more particularly on secured transactions, or secured credit law as it is variously called. The Guide follows the broad contours of Article 9 of the United States Uniform Commercial Code though it is not an exact copy. It aims to harmonise and modernise the law of secured credit across the globe. In UNCITRAL’s view, the Legislative Guide will aid the growth of individual businesses and also in general economic prosperity. Harmonisation …

Making Wto Remedies Work For Developing Nations: The Need For Class Actions, Phoenix X. Cai

Phoenix X. Cai

Making WTO Remedies Work for Developing Nations: The Need for Class Actions

Abstract

Developing nations comprise more than four-fifths of the membership of the World Trade Organization (“WTO”). Yet, they seldom participate in the WTO’s powerful dispute settlement process. This is problematic because the WTO is essentially a self-enforcing system of reciprocal trade rights that relies on proactive monitoring and enforcement by all members. Use of the self-enforcement mechanism – by initiating cases under the WTO’s Dispute Settlement Understanding (“DSU”) - is critical.

There are five primary reasons why developing nations do not actively invoke the DSU. This Article argues …

E-Elections: Time For Japan To Embrace Online Campaigning, Matthew J. Wilson

Matthew J. Wilson

Asia has embraced the Internet and social media. Japan and South Korea rank among the world’s leaders in technological innovation and Internet penetration. China boasts over 420 million Internet users, and other Asian countries have experienced the widespread acceptance of online technologies. With the rapid ascendency of the Internet and social media, however, Asian countries have sometimes struggled with striking the proper balance between individual rights and the legal regulation of online activities. One prime example of such struggle involves the clash between Japan’s election laws and individual political freedoms.

Although Japan generally subscribes to democratic traditions and the principle …

Auditors' Multi-Layered Liability Regime, Paolo E. Giudici

Paolo E. Giudici

The proposals to limit auditor liability, principally aimed at protecting the Big-4 from the risk of a catastrophic exposure to damages, are grounded on the assumption that auditors are generally over-deterred. The 2008 EC Commission Recommendation on auditor liability relies heavily on this assumption and the economic rationale that underpins it, which is entirely focused on liability towards investors and the US narrative concerning securities class actions. However, the case is much more complex. Any discussion about auditor liability must investigate the following questions: who the auditor’s principals are; whether they are in a position to negotiate in order to …

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Craig Martin

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review …

Rethinking Preventive Measures For Money Laundering And Terrorism Financing, Richard K. Gordon

Richard K Gordon

Preventive measures for money laundering and terrorism financing are among the most widely accepted and observed global standards. However, there is substantial evidence that they do not work well. A main reason is that private sector parties, mostly financial institutions but including few others, are tasked with duties for which they are ill suited, while too little is required of the public sector . While they are required to monitor client transactions and reporting those that raise suspicion of money laundering or terrorism financing, they do not have sufficient expertise or data access to do so. Also, as suggested by …

The Emergence Of East Asia Constitutionalism: Features In Comparison, Wen-Chen Chang, Jiunn-Rong Yeh

Wen-Chen Chang

Vibrant constitutional democracies have taken hold in East Asian soil. Japan, South Korea and Taiwan came to mind as successful examples. Scant attention, however, has been placed upon ways that constitutionalism has been brought into being and developed into distinctive forms in East Asia. This paper seeks to analyze in a descriptively way constitutional developments in Japan, South Korea and Taiwan. By reading the three cases together, this paper discerns a number of common features shared by the three constitutional developments, which include instrumental constitutional state building, textual and institutional continuity, reactive judicial review and a wide range of rights …

The Emergence Of East Asia Constitutionalism: Features In Comparison, Wen-Chen Chang, Jiunn-Rong Yeh

Wen-Chen Chang

Vibrant constitutional democracies have taken hold in East Asian soil. Japan, South Korea and Taiwan came to mind as successful examples. Scant attention, however, has been placed upon ways that constitutionalism has been brought into being and developed into distinctive forms in East Asia. This paper seeks to analyze in a descriptively way constitutional developments in Japan, South Korea and Taiwan. By reading the three cases together, this paper discerns a number of common features shared by the three constitutional developments, which include instrumental constitutional state building, textual and institutional continuity, reactive judicial review and a wide range of rights …

Specialized Courts For Terrorism Trials, Sudha Setty

Sudha Setty

On the campaign trail in 2008, presidential candidate and then-Senator Barack Obama promised to restore America’s place in the world by breaking with many of the national security policies put into effect by President George W. Bush. In January 2009, President Obama made numerous changes to United States foreign policy, including signing an executive order to close the prison at Guantanamo Bay, Cuba and announcing that the United States would not engage in interrogation techniques that constitute torture. In some aspects of national security law and policy, however, Obama has followed the example of President Bush—for example, in his announcement …

The Emergence Of East Asia Constitutionalism: Features In Comparison, Wen-Chen Chang, Jiunn-Rong Yeh

Wen-Chen Chang

Vibrant constitutional democracies have taken hold in East Asian soil. Japan, South Korea and Taiwan came to mind as successful examples. Scant attention, however, has been placed upon ways that constitutionalism has been brought into being and developed into distinctive forms in East Asia. This paper seeks to analyze in a descriptively way constitutional developments in Japan, South Korea and Taiwan. By reading the three cases together, this paper discerns a number of common features shared by the three constitutional developments, which include instrumental constitutional state building, textual and institutional continuity, reactive judicial review and a wide range of rights …

Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enríquez

Paul Enriquez

This Article builds upon Philip C. Jessup’s revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-à-vis international law. This theory, called metanationalism, rejects Harold Koh’s theory of transnationalism and demonstrates that …

Is Tax Law Culturally Specific? Lessons From The History Of Income Tax Law In Mandatory Palestine, Assaf Likhovski

Assaf Likhovski

Tax law is a technical area of law which does not seem to be culturally specific. It is thus seen as easily transferable between different societies and cultures. However, tax law is also based on definitions and notions which are not universal (the private sphere, the family, the gift etc.). So, is tax law universal or particular? Is it indeed easily transferable between different societies? And in what ways does tax law reflect ethnic or cultural rather than economic differences? This Article seeks to answer these questions by analyzing one specific example — the history of income tax legislation in …

Insulating The Constitution: Yong Vui Kong V. Public Prosecutor [2010] Sgca 20, Aravind Ganesh

Aravind Ganesh

In May 2010, the Singapore Court of Appeal upheld the constitutionality of the mandatory death penalty in Yong Vui Kong v PP. This article does not deal with the propriety of mandatory death penalty laws, or of the death penalty broadly, but instead focuses on two novel pronouncements by the Court of Appeal. First, that customary international law not only has no legal validity in the domestic Singaporean legal sphere, but that it is also not to be treated as automatically incorporated into Singapore common law. Instead, a rule of customary international law can become part of Singapore law only …

The Anglo-American Perspective On Freezing Injunctions, Masayuki Tamaruya

Masayuki Tamaruya

Freezing injunctions are pre-trial orders to restrain a defendant from dealing with his assets so as to forestall his attempt to frustrate the potential money judgment against him. Freezing injunctions have been adopted in most common law jurisdictions as an effective civil remedy to combat attempts by recalcitrant debtors or fraudsters to frustrate potential money judgments by use of ever faster methods of fund transfer. However, in Grupo Mexicano de Desarrollo SA v Alliance Bond Fund Inc, the US Supreme Court by a 5:4 judgment declared that the US District Court does not have the equitable jurisdiction to grant such …

International Commercial Surrogacy And Its Parties, Margaret Ryznar

Margaret Ryznar

When discussing international commercial surrogacy, it is essential to remember that at the heart of this market are women and children, which requires an in-depth analysis of the issues that implicate these parties to a commercial surrogacy. In undertaking such an analysis, this Article considers the rights, interests, and obligations of these parties to a surrogacy, as well as the various opportunity costs of international commercial surrogacy. This framework is particularly relevant today as India, an international surrogacy hotspot for American couples, begins to legislate on the subject, and relatedly, as American states continue to grapple with issues regarding surrogacy.

The Legal Treatment Of Cohabitation In Poland And The United States, Margaret Ryznar, Anna Stępień-Sporek

Margaret Ryznar

The increasing popularity of cohabitation, as manifested in the recent American and Polish censuses, has introduced various issues to the courts and legislatures in each country—among the most important being the protection of cohabitants after an unsuccessful cohabitation. However, neither country has recognized a comprehensive law on cohabitation, instead permitting cohabitation agreements and unjust enrichment theories to govern the termination of the cohabitation. Many issues, furthermore, are treated collaterally by the law through, for example, paternity laws. Although there are certain disadvantages to such an approach to cohabitation, these shortfalls need to be balanced against the consequences of the increased …

"Sports Image And The Law" Presented At The International Sport Law & Business Conference, That Took Place In Instanbul, 6-7 September 2010, Marios Papaloukas

Marios Papaloukas

In the context of what is called the new media environment, the term “sports image” is used meaning the athlete’s right to their own image as well as the right to exploit commercially a sports event. Under Greek law sports events are not recognised as original intellectual products, so they are not protected under the Law on Intellectual Property. Individuals (sportsmen) producing the sports event, are not aware of the result, i.e. its final form. The elements of competition and improvisation combined with physical contact are enough to guarantee a different result every time, no matter how many times the …

The Principle Of Equal Treatment In Triangular Relationships, Michael Gruenberger

Michael Gruenberger

The European Court of Justice [ECJ] held in Coleman v. Attrigde Law, Case C-303/06, E.C.R. I- [2008], that the prohibition of direct discrimination laid down in Art. 1 and 2 Directive 2000/78/EC is not limited only to people who are themselves disabled, but includes a less favorable treatment of an employee which is based on the disability of her child, whose care is provided primarily by that employee. The Coleman case is the first noticeable case in European anti-discrimination law with facts involving a triangular relationship: the person who presumably discriminates, the injured party and the carrier of the characteristics …

How (Not) To Discourage The Unscrupulous Copyist, Peter L. Ludwig

Peter L. Ludwig

This short article explores how the U.S. and Japanese courts implement the doctrine of equivalence when determining patent infringement. The doctrine of equivalence is a balance of, on one hand, the public’s interest to know the metes and bounds of the patent; and on the other hand, the private interest of the patentee to be granted a sufficient scope for the granted patent. After comparing and contrasting the courts’ implementation of the doctrine, I propose a new method that places the burden on the patent practitioner, before infringement proceedings begin, to determine the proper scope of the patent.

Through A Russian Looking Glass: The Development Of A Russian Rule Of Law And Democracy, Whitney R. Cale

Whitney R Cale

U.S. policymakers, scholars, and citizens alike, have failed to recognize the reality of Russian law and democracy today. Instead, they have embraced a distorted view that concludes that Russian leadership has “hijacked” Russia. This Article challenges this dominant view arguing arguing that a more nuanced approach to Russia is necessary. Specifically, Russia’s multi-faceted and storied history, and intensely fervent nationalism have formed a unique worldview that provides the lens through which to view that country’s understanding of the rule of law and democracy. It is through this lens that the Russia of today may be reconciled, because although Russian leaders’ …

Putting Aside The Rule Of Law Myth: Corruption And The Case For Juries In Emerging Democracies, Brent T. White

Brent T. White

Since the mid-1990’s, international donor agencies and development banks have invested millions to reform post-communist judiciaries in Central Asia and Europe. This investment has been driven by the belief that economic growth and democracy depend upon the “rule of law.” “Rule of law” in turn depends on a well-functioning and independent judiciary. After over a decade of rule of law reform, however, Central Asia is characterized by growing authoritarianism and judiciaries across both Central Asia and Eastern Europe are afflicted by rampant corruption. Both the rule of law and democracy have been elusive. Rule-of-law reform projects throughout the post-Soviet space …

Choice Of Law In Cross-Border Torts: Why Plaintiffs Win, And Should, Symeon C. Symeonides

Symeon C Symeonides

This Article is the first comprehensive study of how American courts have resolved conflicts of laws arising from cross-border torts over the last four decades. This period coincides with the confluence of two independent forces: (1) a dramatic increase in the frequency and complexity of cross-border torts generated by the spectacular expansion of cross-border activity now known as globalization; and (2) the advent of the American choice-of-law revolution, which succeeded in demolishing the old regime in forty-two U.S. jurisdictions, but failed to replace it with anything resembling a unified system. One of the findings of the Article is that, despite …

The Pursuit Of Life, Liberty, Happiness…And Fairness? Property Division In American And English Big Money Divorce Cases, Margaret Ryznar

Margaret Ryznar

Eyebrows have recently arched not only at the high sums involved in big money divorce cases, but also at the amount of ink spilled on this relatively small subset of divorce cases. Yet, it is precisely in big money cases that fairness acquires substantial haziness. Is it fair for a high-wage earner to pay an ex-spouse half of his future profits? Or, would it be fairer for the ex-spouse to be awarded less than half, but still receive millions of dollars? Such questions are particularly acute in short marriages or when one spouse is at fault for the divorce. Courts …

Roe And The Politics Of Backlash: Countermobilization Against The Courts And Abortion Rights Claiming, Scott E. Lemieux

Scott E Lemieux

Conventional wisdom holds that Roe v. Wade might have been a serious strategic error on the part of the pro-choice movement, as abortion law was being liberalized anyway and the Supreme Court's intervention produced a furious backlash. This paper argues that every element of this argument is erroneous. The drive for liberalization was stalled before 1973 by a very well-organized pro-life movement, and both the American and Canadian cases suggest that judicial opinions do not produce any more backlash than commensurate legislative policy changes.

The Meanings Of Dishonesty In Theft, Alex Steel

Alex Steel

This paper examines the development of the element of fraudulence in larceny and its recasting as dishonesty in modern theft offences. It examines the diverging approaches in England, Canada, New Zealand and Australia and attempts to explain the implications of the various approaches. It suggests that historical debates over the term arose because of the lack of clarity in early decisions, and that those debates continue today. Consequently, the principled basis for dishonesty as a legal term remains fundamentally unclear and discussion of the term requires further consideration.

Recognition Of Overseas Same Sex Marriages: A Matter Of Equality And Sound Statutory Interpretation, Dr Leonardo J. Raznovich

Dr Leonardo J Raznovich

It is accepted that the institution of marriage is more than economic benefits. The availability of marriage to same sex couples in eight western democratic jurisdictions exerts pressure on courts to consider the substance and ethical dimension of marriage across borders. This paper analyses the legal and ethical problems that exclusion of same sex couples from marriage generates in relation to equality and individual freedoms in a democratic society. The paper focuses on the particular case of overseas same sex married couples that seek to immigrate to England. Part I analyses the legal recognition of overseas same sex marriages under …

Wild-West Cowboys Versus Cheese-Eating Surrender Monkeys: Some Problems In Comparative Approaches To Extreme Speech, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

All European states ban some form of hate speech. US law precludes such bans. In view of the political and symbolic importance of free speech, it becomes tempting to assume that trans-Atlantic differences towards hate speech reflect deeper cultural divisions.

However, we must pay attention to comparative methodology before drawing ambitious conclusions about cross-cultural social and political differences that derive solely from differences in formal, black-letter norms. In this volume, Robert Post claims that formal, constitutional requirements of content-neutral regulation reflect a freer public sphere in the US, in contrast to the European public sphere.

Yet a legal-realist approach casts …

Switzerland, Samuel P. Baumgartner

Samuel P. Baumgartner

Switzerland has the traditional Austro-German representative association procedures. Debate on adoption of other models, given the opportunity of the introduction of a first federal Code of Civil Procedure, reveals considerable cautious conservatism toward reform.