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Full-Text Articles in Law

Relying On Government In Comparison: What Can The United States Learn From Abroad In Relation To Administrative Estoppel, Dorit Rubinstein Reiss Jan 2014

Relying On Government In Comparison: What Can The United States Learn From Abroad In Relation To Administrative Estoppel, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.


Public Opinion And The Abolition Or Retention Of The Death Penalty Why Is The United States Different?, Sara Sun Beale Jan 2014

Public Opinion And The Abolition Or Retention Of The Death Penalty Why Is The United States Different?, Sara Sun Beale

Faculty Scholarship

What explains the difference between the United States and the many other countries that have abolished capital punishment? Because the United States and many other nations that have abolished the death penalty are democracies, there seems to be an obvious answer: abolition or retention reflects the preferences of the electorate. According to this view, the U.S. electorate is simply more punitive, and the question becomes explaining the difference in national attitudes. There is some truth to this explanation. As I have argued elsewhere, the U.S. public generally does favor punitive criminal justice policies. But that cannot be the ...


Moral Rights 2.0, Peter K. Yu Jan 2014

Moral Rights 2.0, Peter K. Yu

Faculty Scholarship

When the protection of moral rights is brought up in the United States, commentators have always emphasized the differences between continental Europe and the United States.2 Cases that have been widely used as textbook illustrations include Soc. Le Chant de Monde v. Soc. Fox Europe3 and Turner Entertainment Co. v. Huston.4 While the Anglo-American copyright regime and the French author’s right (droit d’auteur) regime were quite similar in the eighteenth century, 5 the protection of moral rights did not attain formal international recognition until 1928.6 The gap between the U.S. and French systems has ...


U.S. Executive Branch Patent Policy, Global And Domestic, Arti K. Rai Jan 2014

U.S. Executive Branch Patent Policy, Global And Domestic, Arti K. Rai

Faculty Scholarship

No abstract provided.


Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale Jan 2014

Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale

Faculty Scholarship

In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of ...


Interstate Conflict And Cooperation In Criminal Cases: An American Perspective, Jenia I. Turner Jan 2014

Interstate Conflict And Cooperation In Criminal Cases: An American Perspective, Jenia I. Turner

Faculty Scholarship

Over the last decade, the European Union has adopted legislation that calls for the mutual recognition of arrest warrants, investigation orders, and penal judgments. These laws have aimed to strengthen the Union’s response to transnational crime, and EU policymakers are currently considering legislation to further harmonize the Union's law enforcement efforts. This Article compares these developments within the EU to the U.S. legal framework on mutual recognition in criminal matters. It examines the individual, state and systemic interests that U.S. state courts have considered in deciding whether to recognize other states' judgments, warrants, or investigative actions ...


Procedural Justice Beyond Borders: Mediation In Ghana, Jacqueline M. Nolan-Haley, James Kwasi Annor-Ohene Jan 2014

Procedural Justice Beyond Borders: Mediation In Ghana, Jacqueline M. 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 ...


Global Experimentalist Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel Jan 2014

Global Experimentalist Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This article outlines the concept of Global Experimentalist Governance (GXG). GXG is an institutionalized transnational process of participatory and multilevel problem solving, in which particular problems, and the means of addressing them, are framed in an open-ended way, and subjected to periodic revision by various forms of peer review in light of locally generated knowledge. GXG differs from other forms of international organization and transnational governance, and is emerging in various issue areas. The Montreal Protocol on ozone-depleting substances is used to illustrate how GXG functions. The conditions for the emergence of GXG are specified, as well as some of ...


Exporting Standards: The Externalization Of The Eu's Regulatory Power Via Markets, Anu Bradford Jan 2014

Exporting Standards: The Externalization Of The Eu's Regulatory Power Via Markets, Anu Bradford

Faculty Scholarship

This Article examines the unprecedented and deeply underestimated global power that the EU is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Introducing the notion of “the Brussels Effect,” the Article shows how market forces alone are sufficient to convert EU standards into global standards. Without the need to use international institutions or seek other nations’ cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable “Europeanization” of many ...


A Reply To "Hollow Spaces", George A. Bermann, Jack J. Coe Jr., Christopher R. Drahozal, Catherine A. Rogers Jan 2014

A Reply To "Hollow Spaces", George A. Bermann, Jack J. Coe Jr., Christopher R. Drahozal, Catherine A. Rogers

Faculty Scholarship

This short essay responds to Chip Brower's thoughtful and meticulous critique of Tentative Draft No. 2 of the Restatement Third of the U.S. Law of International Commercial Arbitration. While we appreciate the concerns he raises, we disagree with the conclusions he draws both about the Restatement and the drafting process. We address here what we understand to be Professor Brower's major criticisms of the work.


Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang Jan 2014

Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang

Faculty Scholarship

Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households ...


Up In The Air Over Taxing Frequent Flyer Benefits: The American, Canadian, And Australian Experiences, Lawrence A. Zelenak Jan 2014

Up In The Air Over Taxing Frequent Flyer Benefits: The American, Canadian, And Australian Experiences, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.


“Turn On The Lights” -Sustainable Energy Investment And Regulatory Policy: Charting The Hydrokinetic Path For Pakistan, Nadia B. Ahmad Oct 2013

“Turn On The Lights” -Sustainable Energy Investment And Regulatory Policy: Charting The Hydrokinetic Path For Pakistan, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.


Visiting Room: A Response To Prison Visitation Policies: A Fifty-State Survey, Giovanna Shay Jan 2013

Visiting Room: A Response To Prison Visitation Policies: A Fifty-State Survey, Giovanna Shay

Faculty Scholarship

This Essay responds to Boudin, Stutz & Littman, Prison Visitation Policies: A Fifty State Survey, by placing American visitation policies in a global context. American prison visitation polices are unique among advanced democracies. Other nations, particularly in Western Europe, have far more liberal policies. Prisons in the United Kingdom, Canada, and Finland feature mother/baby units and family visitation centers. In Denmark and Norway, prisoners are granted passes to visit family. These policies encourage visitation. Increased visitation is linked to lower recidivism, so adopting such policies would potentially lower prison populations in the United States. The Essay acknowledges that following other ...


Two Conflicts In Context: Lessons From The Schiavo And Bland Cases And The Role Of Best Interests Analysis In The United Kingdom, Barbara A. Noah Jan 2013

Two Conflicts In Context: Lessons From The Schiavo And Bland Cases And The Role Of Best Interests Analysis In The United Kingdom, Barbara A. Noah

Faculty Scholarship

This Essay considers the different approaches to end of life decision making for incapacitated patients in the United States and in the United Kingdom. In the United States, individual patient autonomy is the primary guidepost for making end of life decisions for incapacitated patients. In the United Kingdom, patient preference is openly and deliberately supplemented with a careful consideration of the patient’s best interest. To contrast the two approaches, the Essay focuses on two cases involving patients in permanent vegetative states (PVS) for whom little was known about their respective individual preferences, and it analyzes the differences in conceptualization ...


Diminishing Sovereignty: How European Privacy Law Became International Norm, Mckay Cunningham Jan 2013

Diminishing Sovereignty: How European Privacy Law Became International Norm, Mckay Cunningham

Faculty Scholarship

There is a tendency to forget how young the Internet is. Modern computing and data trafficking are not even historical pre-teens. The personal computer was not widely available to consumers until the late 1970s, and the Internet was not fully commercialized until 1995.1 Less than two decades later, seventy-six percent of Americans own at least one personal computer and seventy-seven percent regularly rely on the Internet.2 Increasingly, businesses, schools, news organizations, and financial institutions offer their services exclusively online.3 The U.S. Department of Homeland Security reports a high level of integration and reliance, noting that “our ...


The Constitutive Act Of The African Union, African Courts And The Protection Of Human Rights: New Dispensation, Joseph M. Isanga Jan 2013

The Constitutive Act Of The African Union, African Courts And The Protection Of Human Rights: New Dispensation, Joseph M. Isanga

Faculty Scholarship

Before the Organization of African Unity (OAU) was reconstituted as the AU [African Union], African States paid lip service to human rights issues. The establishment of the AU through the adoption of the Constitutive Act of the African Union (Constitutive Act) was a watershed moment that African States tried to seize upon to institutionalize and streamline human rights promotion and protection, and send a clear signal that the AU was making a radical departure from the past, characterized by utter disregard for human rights protection. Yet, the African human rights normative framework remained predominantly unchanged because the primary instrument—the ...


The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf Jan 2013

The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf

Faculty Scholarship

U.S. asylum law is based on a domestic statute that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum pro- visions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. This Article highlights this significant omission and urges courts to examine the interpretations of other States Parties to the Protocol in asylum cases. Using as an example the current ...


Building The Ladder: Three Decades Of Development Of The Chinese Patent System, Peter K. Yu Jan 2013

Building The Ladder: Three Decades Of Development Of The Chinese Patent System, Peter K. Yu

Faculty Scholarship

In the past three decades, China has been very successful in developing its patent system. In 2012, the country is among the top five countries filing patent applications through the Patent Cooperation Treaty, behind only the United States, Japan and Germany. Among all the applicants, ZTE Corp. and Huawei Technologies had the largest and fourth largest number of PCT applications, respectively. With significant backing from the Chinese government and the anticipated involvement of the world's largest public sector, China will likely catch up with the existing intellectual property powers more quickly than many have anticipated.

Written for a special ...


Toward A Jurisprudence Of Free Expression In Russia: The European Court Of Human Rights, Sub-National Courts, And Intersystemic Adjudication, Robert B. Ahdieh, H. Forrest Flemming Jan 2013

Toward A Jurisprudence Of Free Expression In Russia: The European Court Of Human Rights, Sub-National Courts, And Intersystemic Adjudication, Robert B. Ahdieh, H. Forrest Flemming

Faculty Scholarship

Protection of free expression in Russia is headed the wrong direction, but one institution may still be able to slow its backward slide: the Russian judiciary. In particular, sub-national courts-those operating at the ground level-have the potential to shape a renewed jurisprudence of free expression in Russia. To encourage as much, the European Court ofHuman Rights (ECHR) should engage the Russian courts in a pattern of "intersystemic adjudication, "pressing them to embrace ideas about the role of courts, the law, human rights, and free expression more in line with international norms. Hopefully, this can reverse Russia's current path toward ...


Walking Back From Cyprus, Lee C. Buchheit, Mitu Gulati Jan 2013

Walking Back From Cyprus, Lee C. Buchheit, Mitu Gulati

Faculty Scholarship

Last Friday, the European leaders trespassed on consecrated ground by putting insured depositors in Cypriot banks in harm’s way. They had other options, none of them pleasant but some less ominous than the one they settled on.


Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman Jan 2013

Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman

Faculty Scholarship

No abstract provided.


Better Ways To Study Regulatory Elephants, Jonathan B. Wiener, Brendon Swedlow, James K. Hammitt, Michael D. Rogers, Peter H. Sand Jan 2013

Better Ways To Study Regulatory Elephants, Jonathan B. Wiener, Brendon Swedlow, James K. Hammitt, Michael D. Rogers, Peter H. Sand

Faculty Scholarship

No abstract provided.


Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia And Central Asia, Elizabeth Clark Jan 2013

Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia And Central Asia, Elizabeth Clark

Faculty Scholarship

Religious freedom, among other human rights, has increasingly been restricted in Russia and Central Asia. Recent empirical research has shown that increased governmental regulation of religion causes increased social hostilities over religion and has shown the connections between religious freedom and numerous other civil rights and social goods. The U.S. government has particularly recognized the importance of religious freedom in Russia, mandating significant restrictions on aid based on the Russian interpretation of restrictive religion legislation passed in 1997. Since that time, however, virtually no attention has been given to draft legislation in this area in Russia and common trends ...


“One Size Can Fit All” – On The Mass Production Of Legal Transplants, Ralf Michaels Jan 2013

“One Size Can Fit All” – On The Mass Production Of Legal Transplants, Ralf Michaels

Faculty Scholarship

Law reformers like the World Bank sometimes suggest that optimal legal rules and institutions can be recognized and then be recommended for law reform in every country in the world. Comparative lawyers have long been skeptical of such views. They point out that both laws and social problems are context-specific. What works in one context may fail in another. Instead of “one size fits all,” they suggest tailormade solutions.

I challenge this view. Drawing on a comparison with IKEA’s global marketing strategy, I suggest that “one size fits all” can sometimes be not only a successful law reform strategy ...


La Interseccion De La Responsabilidad Extracontractual Y El Derecho Constitucional Y Los Derechos Humanos, George C. Christie Jan 2013

La Interseccion De La Responsabilidad Extracontractual Y El Derecho Constitucional Y Los Derechos Humanos, George C. Christie

Faculty Scholarship

No abstract provided.


Procedural Due Process In The Expulsion Of Aliens Under International, United States, And European Union Law: A Comparative Analysis, Won Kidane Jan 2013

Procedural Due Process In The Expulsion Of Aliens Under International, United States, And European Union Law: A Comparative Analysis, Won Kidane

Faculty Scholarship

Liberal democracies aspire to respect minimum standards of individual liberty and due process to all. They structurally limit their powers with respect to how they treat all persons-including noncitizens, also known as "aliens." Nonetheless, the exact scope and nature of the limitations imposed by international and domestic legal regimes for the expulsion of noncitizens still remains uncertain and is in a constant state of evolution in multiple directions. Indeed, a mix of situational progression and regression characterizes these regimes. The proper balance between personal liberty, due process, and equal protection on the one hand-and security, economic and related governmental and ...


A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Elizabeth G. Thornburg, Erik S. Knutsen, Carla Crifo, Camille Cameron Jan 2013

A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Elizabeth G. Thornburg, Erik S. Knutsen, Carla Crifo, Camille Cameron

Faculty Scholarship

This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree — and in which procedure is recognized as a legitimate academic subject — have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of institutional support ...


New Modes Of Pluralist Global Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel Jan 2013

New Modes Of Pluralist Global Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This paper describes three modes of pluralist global governance. Mode One refers to the creation and proliferation of comprehensive, integrated international regimes on a variety of issues. Mode Two describes the emergence of diverse forms and sites of cross-national decision making by multiple actors, public and private as well as local, regional and global, forming governance networks and “regime complexes,” including the orchestration of new forms of authority by international actors and organizations. Mode Three, which is the main focus of the paper, describes the gradual institutionalization of practices involving continual updating and revision, open participation, an agreed understanding of ...


Supranational? Federal? Intergovernmental? The Governmental Structure Of The European Union After The Treaty Of Lisbon, Roger Goebel Jan 2013

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