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Local Human Rights Lawyering, Lauren Bartlett Jan 2018

Local Human Rights Lawyering, Lauren Bartlett

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International human rights offer a powerful set of norms that have helped domestic advocates to successfully secure additional civil, political, economic and social rights for those living in poverty in the U.S. Legal aid attorneys, public defenders, and other public interest advocates have recognized human rights as an additional advocacy tool and are increasingly using human rights arguments in U.S. courts. This article examines three cases in which legal aid attorneys and public defenders successfully used human rights arguments in U.S. courts, and discusses emerging best practices for using human rights in litigation in the U.S.


Property And Political Community: Democracy, Oligarchy, And The Case Of Ukraine, Monica E. Eppinger Jan 2015

Property And Political Community: Democracy, Oligarchy, And The Case Of Ukraine, Monica E. Eppinger

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Widening wealth gaps in Western democracies have brought new scrutiny to relationships between property and political community. For the prior quarter century, Western legal scholars have urged privatization around the globe as the key to a virtuous circle of "market democracy." This Article traces origins of the market democracy consensus to ideas that identify positive features of political community -- liberty, wealth, or democracy -- with private property ownership. Fieldwork in Ukraine, where Western privatization advice was followed at a time of founding a new polity, provides data to compare predictions with outcomes. Two unexpected figures -- the Oligarch and the Precariat -- emerge ...


The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decision According To Law?, James Maxeiner Jul 2014

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decision According To Law?, James Maxeiner

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This essay is a critical response to the 2013 commemorations of the 75th anniversary of the Federal Rules of Civil Procedure.

The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice” with decisions according to law. By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do.

One side promotes rules that control and conclude litigation: e.g., plausibility pleading, case management, limited discovery ...


Egypt, Lila Meadows, Nadia Adib Bamieh, Janet E. Lord Jan 2014

Egypt, Lila Meadows, Nadia Adib Bamieh, Janet E. Lord

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This chapter is a factbook summarizing disability laws, organisations, and statistics in Egypt as of 2014.


Building A Government Of Laws: Adams And Jefferson 1776–1779, James Maxeiner Jan 2014

Building A Government Of Laws: Adams And Jefferson 1776–1779, James Maxeiner

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America’s rule of law is not working well because many American lawyers confound their rule of law with common law and with common law methods. They overlook the contribution of good legislation to good government. They fixate on judges, judge-made law and procedure. America’s founders, in particular, John Adams and Thomas Jefferson, did not. They were not entranced by common law and by common law methods. This chapter shows how in the first few years of American independence, Adams popularized the term “government of laws” and how Jefferson drafted statutes for a government of laws. Neither of them ...


Marxist And Soviet Law, Stephen C. Thaman Jan 2014

Marxist And Soviet Law, Stephen C. Thaman

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This chapter addresses both the Marxist critique of law before the Russian Revolution and the development of the Soviet Law Structure. It discusses the three main trends in Soviet Criminal Law before elucidating how these trends affected the General Part and the Special Part of Soviet Criminal Codes and overall Soviet criminal policy.


Does Public Employee Collective Bargaining Distort Democracy? A Perspective From The United States, Martin H. Malin Apr 2013

Does Public Employee Collective Bargaining Distort Democracy? A Perspective From The United States, Martin H. Malin

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The beginning of the second decade of the 21st century saw renewed attacks on public employee collective bargaining, which included claims that allowing public employees to organize and bargain collectively distorts democratic processes. These renewed attacks included the traditional claim that public employee collective bargaining inappropriately gives one interest group, workers and their unions, an avenue of access to public decision-makers that is not available to other interest groups. The attack also raised a new claim of distortion of democratic processes: that unions are inappropriately advantaged in the broader political process through agency shop or fair share and dues check-off ...


Asia And Global Competition Law Convergence, David J. Gerber Jan 2013

Asia And Global Competition Law Convergence, David J. Gerber

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No abstract provided.


Report On Usa, Stephen C. Thaman Jan 2013

Report On Usa, Stephen C. Thaman

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This chapter in the book on transnational inquiries and the protection of fundamental rights in criminal proceedings takes into account the particular, and perhaps unique situation in the United States (US) following the terrorist attacks of 11 September 2001. It explores the laws regulating inquiries by foreign governments who seek evidence in the US to use in criminal proceedings overseas, but primarily the protections recognized by US statutes and jurisprudence when US officials gather evidence abroad. In this respect, the chapter focuses on protections during interrogations, searches, interceptions of confidential communications, and examinations of witnesses and explores when the protection ...


Price-Fixing: Hefty Penalties On Big-Biz Cartels Will Provide Level Playing Field To Small Businesses, John M. Connor, Robert H. Lande Aug 2012

Price-Fixing: Hefty Penalties On Big-Biz Cartels Will Provide Level Playing Field To Small Businesses, John M. Connor, Robert H. Lande

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Cartels are illegal in India, as they are almost everywhere. They are subject to heavy fines. Why, then, do businesses frequently try to fix prices? Because doing so usually is profitable. On average cartels raise prices by more than 20%, and probably face less than a 25% chance of being caught and convicted. Based upon a sample of 75 international cartels, the authors calculate that the expected profits from price fixing almost always exceed the penalties. No wonder businesses often try to fix prices.


Consumer Choice As The Best Way To Describe The Goals Of Competition Law, Robert H. Lande Aug 2012

Consumer Choice As The Best Way To Describe The Goals Of Competition Law, Robert H. Lande

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This article is both a short introduction to the Consumer Choice explanation for Competition Law or Antitrust Law, and also a short advocacy piece suggesting that Consumer Choice is the best way to articulate the goals of European Competition Law and United States Antitrust Law.

This article briefly:

  1. defines the consumer choice approach to antitrust or competition law and shows how it differs from other approaches;
  2. shows that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice;
  3. shows that the United States antitrust case law embodies a concern for optimal levels of consumer ...


Danbury Hatters In Sweden: An American Perspective Of Employer Remedies For Illegal Collective Actions, César F. Rosado Marzán, Margot Nikitas Aug 2012

Danbury Hatters In Sweden: An American Perspective Of Employer Remedies For Illegal Collective Actions, César F. Rosado Marzán, Margot Nikitas

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The European Court of Justice's ("ECJ") Laval quartet held that worker collective actions that impacted freedom of services and establishment in the E.U. violated E.U. law. After Laval, the Swedish Labor Court imposed exemplary or punitive damages on labor unions for violating E.U. law. These cases have generated critical discussions regarding not only the proper balance between markets and workers’ freedom of association, but also what should be the proper remedies for employers who suffer illegal actions by labor unions under E.U. law. While any reforms to rebalance fundamental freedoms as a result of the ...


Punishment And Work Law Compliance: Lessons From Chile, César F. Rosado Marzán Jul 2012

Punishment And Work Law Compliance: Lessons From Chile, César F. Rosado Marzán

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Workplace law activists and reformers find it increasingly more difficult to obtain redress for violation of workers’ rights. Some of them are calling for stricter enforcement and tougher penalties to bring employers into compliance. However, after seven and half months of participant observation at the Labor Directorate and the labor courts of Chile, institutions that use punishment as their main tools of enforcement, I am skeptical about the likelihood of success of mere punishment for effective workplace law enforcement and compliance. I am skeptical even though Chile is a country recognized as the Latin American “jaguar” for its successful economy ...


Vertical Dimensions In The Quality Of Law, Bartram Brown Jan 2012

Vertical Dimensions In The Quality Of Law, Bartram Brown

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No abstract provided.


Report - Paying For The Past: Addressing Past Property Violations In South Africa, Bernadette Atuahene Jan 2012

Report - Paying For The Past: Addressing Past Property Violations In South Africa, Bernadette Atuahene

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No abstract provided.


Regionalization, Development And Competition Law: Exploring The Political Dimension, David J. Gerber Jan 2012

Regionalization, Development And Competition Law: Exploring The Political Dimension, David J. Gerber

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In discussions of the regionalization of competition law, the political dimension often leads a shadowy existence. Regionalization tends to be presented with a hint of a halo around it. States are presented as acting for a shared policy objective intended to benefit all, and political issues often sit uncomfortably with that image. This is particularly true when regionalization involves ‘developing countries’. Here there is often a further level of ‘common good’ discourse. Regionalization is here portrayed not only as a communal experience and goal, but also as one designed to reduce poverty and aid economic development. Where regionalization involves competition ...


Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner Jan 2012

Law – Made In Germany: Global Standort Or Global Standard?, James Maxeiner

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Earlier this year the Federal Ministry of Justice released the second edition of the brochure, Law - Made in Germany. For those readers who do not know the brochure, it is the product of an umbrella group of German professional organizations known as the Bündnis für das deutsche Recht. A purpose of the Bündnis, as stated at its founding in 2008, and of the brochure, is to improve the position of German law in the ― "international competition of legal systems" (internationalen Wettbewerb der Rechtsordnungen). Catalyst for founding of the Bündnis and for publication of Law - Made in Germany was the 2007 ...


The Penal Order: Prosecutorial Sentencing As A Model For Criminal Justice Reform?, Stephen C. Thaman Jan 2012

The Penal Order: Prosecutorial Sentencing As A Model For Criminal Justice Reform?, Stephen C. Thaman

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This chapter traces the history of the penal order from its earliest roots through its consolidation as a normal alternative form of procedure in Germany. It compares the types of penal order procedures found in modern criminal procedure codes, and it compares penal orders with other “consensual” procedural modes that also involve considerable prosecutorial influence in determination of the level of guilt and punishment: diversion, pleas and stipulations of guilt, and abbreviated trials based on the contents of the preliminary investigation dossier. Finally, it explores whether the penal order, could eventually become a model for the consensual resolution of all ...


Criminal Courts And Procedure, Stephen C. Thaman Jan 2012

Criminal Courts And Procedure, Stephen C. Thaman

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This chapter provides both a historical and modern perspective on criminal procedure around the world.


Failure Of The Current Anti-Corruption Strategy In Afghanistan, Hugh Barrett Mcclean Aug 2011

Failure Of The Current Anti-Corruption Strategy In Afghanistan, Hugh Barrett Mcclean

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Corruption has come to the forefront in Afghanistan as the United States tries to balance efforts to back anti-corruption strategies while maintaining a positive relationship with the Karzai government. Stalled corruption cases suggest corruption in Afghanistan is systemic and not limited to a particular governing body or official. It is clear that corruption exists in both the upper and lower echelons of Afghan society, and will continue to exist until the U.S.-backed anti-corruption teams are accepted by the Afghan government. The strengthening of key institutions continues to be the recommended international model. As demonstrated in the United States ...


Method, Community And Comparative Law: An Encounter With Complexity Science, David J. Gerber Jan 2011

Method, Community And Comparative Law: An Encounter With Complexity Science, David J. Gerber

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Assume that you are attending a symposium on comparative law being held in conjunction with the annual meeting of the American Society for Comparative Law. Comparative law scholars from many universities are present, and a few legal practitioners are attending as well. One speaker begins as follows: “This talk will be about complex adaptive systems—the emerging science of complexity.” Based on experience in similar contexts, I would anticipate several common reactions among members of the audience. The most common might be “he’s in the wrong room.” Another set of reactions is likely to be “What? What’s that ...


An Introduction To Comparative Jury Systems (Symposium Editor), Nancy S. Marder Jan 2011

An Introduction To Comparative Jury Systems (Symposium Editor), Nancy S. Marder

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The jury is experiencing a renaissance worldwide. Countries that have never had a jury system, or have had one in the past, have turned to citizens to decide criminal cases. Countries, especially those that aspire to be more democratic, have begun to recognize the importance of having ordinary citizens participate in the criminal justice system. Meanwhile, countries with a longstanding jury tradition continue to maintain that tradition. As some countries consider how best to introduce the jury, or some variation of it such as a mixed court of laypersons and professional judges, and other countries consider how best to improve ...


Two Weeks At The Old Bailey: Jury Lessons From England (Symposium Editor), Nancy S. Marder Jan 2011

Two Weeks At The Old Bailey: Jury Lessons From England (Symposium Editor), Nancy S. Marder

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As deeply-rooted as the jury is in the United States, it is not beyond improvement. There is no better starting place for ideas than England, which provided the model for our jury system. To learn firsthand about current jury practices in England, I spent two weeks observing criminal jury trials at the Old Bailey in London. My goal was to examine jury practices at the Old Bailey and to consider which ones could work well in the United States. I observed some jury practices that I thought we should adopt immediately, and others that would work well in the long ...


Paying For The Past: Addressing Past Property Violations In South Africa, Bernadette Atuahene Jan 2011

Paying For The Past: Addressing Past Property Violations In South Africa, Bernadette Atuahene

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No abstract provided.


South Africa’S Land Reform Crisis: Eliminating The Legacy Of Apartheid, Bernadette Atuahene Jan 2011

South Africa’S Land Reform Crisis: Eliminating The Legacy Of Apartheid, Bernadette Atuahene

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No abstract provided.


"Consumer Choice" Is Where We Are All Going - So Let's Go Together, Neil W. Averitt, Robert H. Lande, Paul Nihoul Jan 2011

"Consumer Choice" Is Where We Are All Going - So Let's Go Together, Neil W. Averitt, Robert H. Lande, Paul Nihoul

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Globalisation of business makes it important for firms to predict how their behaviour is likely to be treated in the roughly 200 nations that have competition laws. In that context, a crucial question is: are we in a position to develop a common intellectual framework that would give coherence to policy statements made on specific competition related issues and, at the same time, be acceptable, broadly, in a variety of legal systems, not necessarily based on identical assumptions? We believe that the answer is “yes.” A concept is emerging as a possible source of unification for competition policies around the ...


Civilizing American Civil Justice: International Insights, James Maxeiner, Gyooho Lee, Armin Weber Jan 2011

Civilizing American Civil Justice: International Insights, James Maxeiner, Gyooho Lee, Armin Weber

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In 1776, when Americans declared independence from Britain, they also declared their rights. Their declarations of rights count “open courts” as among the best means for constitutional development. Open courts should secure to every man, without regard to wealth, a just remedy for every wrong suffered, according to the law of the land, by fair and speedy procedure.

Since 1776 Americans have invested heavily in creating open courts. They have been disappointed by returns that fall “far short of perfection” (Maurice Rosenberg). They have found reform to be an “unending effort to perfect the imperfect” (Jay Tidmarsh).

That Americans have ...


Constitutional Rights In The Balance: Modern Exclusionary Rules And The Toleration Of Police Lawlessness In The Search For Truth, Stephen C. Thaman Jan 2011

Constitutional Rights In The Balance: Modern Exclusionary Rules And The Toleration Of Police Lawlessness In The Search For Truth, Stephen C. Thaman

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This article explores the tension in modern criminal procedure between the goal of ascertaining the material truth of the criminal charge and the respect for important human rights of criminal suspects during the investigation of the alleged criminal responsibility. It examines two major areas where police run the risk of violating and often do violate the constitutional rights of criminal suspects during interrogations and during invasions of privacy in the form of dwelling searches and interception of confidential communications. The approaches of modern democracies to this dilemma run from the strict exclusion of all direct and indirect evidence (fruits of ...


Should Juries Give Reasons For Their Verdicts?: The Spanish Experience And The Implications Of The European Court Of Human Rights Decision In Taxquet V. Belgium, Stephen C. Thaman Jan 2011

Should Juries Give Reasons For Their Verdicts?: The Spanish Experience And The Implications Of The European Court Of Human Rights Decision In Taxquet V. Belgium, Stephen C. Thaman

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This article discusses the Belgian jury system and the decision in Taxquet v. Belgium and then explores to what extent a requirement of reasoned judgments will affect the survival of European juries. It focuses on Spain, where the jury is required to give reasons for its verdicts, and where a lively high-court jurisprudence has developed addressing the quality and sufficiency of jury reasons. This article suggests that it might be appropriate for jury courts in the United States to in some way justify their decision of guilt, in order to minimize the amount of completely innocent persons who have been ...


Pleading And Access To Civil Procedure: Historical And Comparative Reflections On Iqbal, A Day In Court And A Decision According To Law, James Maxeiner Apr 2010

Pleading And Access To Civil Procedure: Historical And Comparative Reflections On Iqbal, A Day In Court And A Decision According To Law, James Maxeiner

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The Iqbal decision confirms the breakdown of contemporary American civil procedure. We know what civil procedure should do, and we know that our civil procedure is not doing it. Civil procedure should facilitate determining rights according to law. It should help courts and parties apply law to facts accurately, fairly, expeditiously and efficiently. This article reflects on three historic American system failures and reports a foreign success story.

Pleadings can help courts do what we know courts should do: decide case on the merits, accurately, fairly, expeditiously and efficiently. Pleadings facilitate a day in court when focused on deciding according ...