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Full-Text Articles in Comparative and Foreign Law

Prosecuting Rape Victims While Rapists Run Free: The Consequences Of Police Failure To Investigate Sex Crimes In Britain And The United States, Lisa Avalos Jan 2019

Prosecuting Rape Victims While Rapists Run Free: The Consequences Of Police Failure To Investigate Sex Crimes In Britain And The United States, Lisa Avalos

Michigan Journal of Gender and Law

Imagine that a close friend is raped, and you encourage her to report it to the police. At first, she thinks that the police are taking her report seriously, but the investigation does not seem to move forward. The next thing she knows, they accuse her of lying and ultimately file charges against her. You and your friend are in shock; this outcome never entered your minds. This nightmare may seem inconceivable, but it has in fact occurred repeatedly in both the United States and Britain—countries that are typically lauded for their high levels of gender equality. In Britain ...


U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley Jan 2018

U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley

Faculty Scholarship

There is no issue of foreign relations law more important than the allocation of authority over the use of military force. This issue is especially important for the United States given the frequency with which it is involved in military activities abroad. Yet there is significant uncertainty and debate in the United States over this issue — in particular, over whether and to what extent military actions must be authorized by Congress. Because U.S. courts in the modern era have generally declined to review the legality of military actions, disputes over this issue have had to be resolved, as a ...


Breathing Air With Heft: An Experiential Report On Environmental Regulation And Public Health In Urban China, Erin Ryan Dec 2017

Breathing Air With Heft: An Experiential Report On Environmental Regulation And Public Health In Urban China, Erin Ryan

Erin Ryan

This article explores the gritty intersections of daily life and environmental law in modern China, an industrial powerhouse still struggling to reconcile economic opportunity with breathable air, clean water, healthy food, and safe products.  With comparative perspective on analogous challenges in the United States, the article reports on these critical domestic challenges for China at a pivotal moment in its reemergence as a dominant world power.  China’s continued geopolitical rise may well hinge on its ability to respond successfully to the environmental causes of growing social unrest.
 
In 2011, in the midst of this maelstrom, I brought my husband ...


Temporary Legislation's Finest Hour?: Towards A Proper Model Of Temporary Legislation In Israel שעתן היפה של הוראות השעה?: לקראת מודל ראוי של חקיקה זמנית בישראל, Ittai Bar-Siman-Tov Dec 2017

Temporary Legislation's Finest Hour?: Towards A Proper Model Of Temporary Legislation In Israel שעתן היפה של הוראות השעה?: לקראת מודל ראוי של חקיקה זמנית בישראל, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This article discusses a major trend in Israeli legislation in recent years: the rise of temporary legislation in Israel. The first part of the article presents a first-of-its-kind empirical study that reveals that the Knesset is increasingly using temporary legislation, which is referred to in Israel as "temporary provisions." Against this background, the main purpose of the article is normative: to propose a model for proper use of temporary legislation in Israel. After reviewing the normative debate for and against temporary legislation, the article focuses on two central questions: When is it appropriate to make use of temporary legislation; and ...


A Necessary Decision Or An Unjustified "Major Deviation" From The Case Law?: Commentary On Hcj 10042/16 Quantinsky V. The Israeli Knesset In The Matter Of The Third Apartment Tax ?החלטה מתבקשת או "סטיה רבתי" בלתי מוצדקת מההלכה הפסוקה הערת פסיקה על בג"ץ 10042/16 קוונטינסקי נ' כנסת ישראל בעניין מס דירה שלישית, Ittai Bar-Siman-Tov Dec 2017

A Necessary Decision Or An Unjustified "Major Deviation" From The Case Law?: Commentary On Hcj 10042/16 Quantinsky V. The Israeli Knesset In The Matter Of The Third Apartment Tax ?החלטה מתבקשת או "סטיה רבתי" בלתי מוצדקת מההלכה הפסוקה הערת פסיקה על בג"ץ 10042/16 קוונטינסקי נ' כנסת ישראל בעניין מס דירה שלישית, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This article analyzes the judgment of the Supreme Court of Israel in HCJ 10042/16 Quantinsky v. the Israeli Knesset, which invalidated the “Third Apartment Tax” provisions in the Arrangements Law. This is one of the most important judgments in the field of judicial review of the legislative process and the first case that invalidated a law due to defects in its legislative process. The article argues that the judgment is characterized by a considerable gap between the positions of the Justices in the majority to the dissent opinion in characterizing the judgment and its relationship to the Poultry Growers ...


Revolution Or Continuity? Bank Hamizrachi's Role In The Development Of Judicial Review Models In Israel מהפכה או המשכיות?: מקומו של פסק דין בנק המזרחי בהתפתחות המודלים של ביקורת שיפוטית בישראל, Ittai Bar-Siman-Tov Dec 2017

Revolution Or Continuity? Bank Hamizrachi's Role In The Development Of Judicial Review Models In Israel מהפכה או המשכיות?: מקומו של פסק דין בנק המזרחי בהתפתחות המודלים של ביקורת שיפוטית בישראל, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This article examines the role of the Bank Hamizrachi case in the development of models of judicial review in Israel. The article analyzes the developments over the years in the attitude of the case-law toward the various models of judicial review: from the era of parliamentary sovereignty; through the Bergman case, which created a model of semi-procedural judicial review stemming from procedural constitutional entrenchment; and the Nimrodi case, which recognized the procedural model a few years before Bank Hamizrachi, which in turn, created the substantive constitutional model; to the Quantinsky ruling in the matter of a multi-apartment tax, which was ...


How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad Dec 2017

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Articles

Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors have obtained ...


A Pantomime Of Privacy: Terrorism And Investigative Powers In German Constitutional Law, Russell A. Miller Dec 2017

A Pantomime Of Privacy: Terrorism And Investigative Powers In German Constitutional Law, Russell A. Miller

Russell A. Miller

Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German Constitution (“Basic Law”) provides explicit textual protections that America’s Eighteenth Century Constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Basic Law Article 1) and the free development of one’s personality (Basic Law Article 2). This jurisprudence includes constitutional liberty guarantees such as the absolute ...


Secession And Federalism In The United States: Tools For Managing Regional Conflict In A Pluralist Society, Erin Ryan Nov 2017

Secession And Federalism In The United States: Tools For Managing Regional Conflict In A Pluralist Society, Erin Ryan

Erin Ryan

This Article explores the use of federalism and secession as tools for managing regional conflict within pluralist governance, drawing on underappreciated features of the American experience.  Epic struggles to balance autonomy with interdependence have taken on new urgency as dissatisfaction with globalization inspires political cataclysms unimaginable just a few years ago—including ‘Brexit’ from the European Union and American threats to leave NATO.  The same impetus toward devolution also surfaces in heated intra-national conflicts.  Recent calls for secession in Scotland, Catalonia, Québec, the Sudan, and even the United States reveal multiple political contexts in which questions have been raised about ...


A Pantomime Of Privacy: Terrorism And Investigative Powers In German Constitutional Law, Russell A. Miller Nov 2017

A Pantomime Of Privacy: Terrorism And Investigative Powers In German Constitutional Law, Russell A. Miller

Boston College Law Review

Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German Constitution (“Basic Law”) provides explicit textual protections that America’s Eighteenth Century Constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Basic Law Article 1) and the free development of one’s personality (Basic Law Article 2). This jurisprudence includes constitutional liberty guarantees such as the absolute ...


Tthe Requirement Of Domestic Participation In New Mining Ventures In Zambia, Muna Ndulo Nov 2017

Tthe Requirement Of Domestic Participation In New Mining Ventures In Zambia, Muna Ndulo

Muna B Ndulo

No abstract provided.


Background Note: Standard Essential Patents, Innovation And Competition: Challenges In India, Arpan Banerjee Nov 2017

Background Note: Standard Essential Patents, Innovation And Competition: Challenges In India, Arpan Banerjee

IP Theory

In September 2014, a few months after a landslide election victory, the Indian Prime Minister Narendra Modi announced the launch of “Make in India,” an ambitious program designed to turn India into a global manufacturing hub. One of the factors widely thought to be responsible for Modi’s victory was support from India’s “neo-middle class”—a young, newly- urbanized section of the electorate seeking employment and improved living standards but struggling amidst an economic downturn. In a speech inaugurating Make in India, Modi linked the program with the aspirations of this section of society. Modi stated the need to ...


Mass Displacement Of Destitute People: A Trigger For Non-Refoulement Protection?, Bernardo De Souza Dantas Fico, Leticia Machado Haertel Nov 2017

Mass Displacement Of Destitute People: A Trigger For Non-Refoulement Protection?, Bernardo De Souza Dantas Fico, Leticia Machado Haertel

The Social Practice of Human Rights: Charting the Frontiers of Research and Advocacy

This paper focuses on two problems around the mass displacement of people in extreme poverty: the characterization of such people as refugees and the application of the non-refoulement principle to mass displacements.

Extreme poverty is causal to grave human rights violations such as deprivation of water, of food, and of an adequate standard of living. These circumstances may reach a degree in which life in a country is unbearable — forcing people to move in order to enhance their likelihood of survival.

The classic understanding of the non-refoulement obligation, as enshrined in the 1951 Refugee Convention, forbids states from returning people ...


Who Wants The Global Law School?, Kevin E. Davis, Xinyi Zhang Nov 2017

Who Wants The Global Law School?, Kevin E. Davis, Xinyi Zhang

New York University Law and Economics Working Papers

Commentators regularly call for the globalization of U.S. legal education. An often unstated presumption is that if we build global law schools, students will come. In the imaginations of its promoters, the global law school will be overwhelmed by demand from students motivated by economically defined career goals. This perspective neglects the potentially confounding influences of imperfect information, on the parts of both employers and students, as well as social and cultural factors that influence students’ decision-making. This study examines factors that influence student decisions about whether to participate in one aspect of globally oriented legal education, study abroad ...


Oliari And The European Court Of Human Rights: Where The Court Failed, Vito John Marzano Oct 2017

Oliari And The European Court Of Human Rights: Where The Court Failed, Vito John Marzano

Pace International Law Review

The European Court of Human Rights revisited the issue of legal recognition for same-sex partnerships on July 21, 2015 when it decided Oliari and Others v. Italy. This Note explores the implications of that decision and what it may mean for same-sex couples within Italy and throughout the Council of Europe. Through a careful analysis of the decision, this Note concludes that Oliari provides slight yet important movement on the issue of a Contracting State’s obligation to afford legal recognition for same-sex partnerships, but a practical implementation of the Court’s holding likely will yield little additional movement in ...


Naftthe Road To Free Trade: Chilean Accession, James E. Etri Oct 2017

Naftthe Road To Free Trade: Chilean Accession, James E. Etri

Law and Business Review of the Americas

No abstract provided.


Canadian Bank Act And Its Implementation Under The Nafta, Michelle Brown Berziel Oct 2017

Canadian Bank Act And Its Implementation Under The Nafta, Michelle Brown Berziel

Law and Business Review of the Americas

No abstract provided.


Development Of Inter-State Cooperation In The Asia Pacific Region: Considerations For Regional Trade Compacts, Yoshi Kodama Oct 2017

Development Of Inter-State Cooperation In The Asia Pacific Region: Considerations For Regional Trade Compacts, Yoshi Kodama

Law and Business Review of the Americas

No abstract provided.


The Mexican Peso Crisis: Implications For The Regulation Of Financial Markets, Douglas W. Arner Oct 2017

The Mexican Peso Crisis: Implications For The Regulation Of Financial Markets, Douglas W. Arner

Law and Business Review of the Americas

No abstract provided.


Clash Of The Titans: A Comparative Approach To Reform Of Judicial Accountability In Egypt, Shams Al Din Al Hajjaji Oct 2017

Clash Of The Titans: A Comparative Approach To Reform Of Judicial Accountability In Egypt, Shams Al Din Al Hajjaji

Seattle University Law Review

This Article argues for the reform of judicial accountability rules in Egypt. The lack of a real separation of powers and “checks and balances” between the three powers often leads the judiciary to become a periphery in the executive body, rather than an independent authority that invigilates and monitors any violation of the law. Judges who refuse to comply with executive wishes are often subjected to persecution from the Ministry of Justice and its Judicial Inspection Department, which can reach up to the level of impeachment. The Ministry of Justice uses judicial accountability as a tool of retribution over disobedient ...


Teaching International Law: Beyond The Law School Experience, Charlotte Ku Oct 2017

Teaching International Law: Beyond The Law School Experience, Charlotte Ku

Charlotte Ku

As teachers, it is perhaps natural for us to think about teaching in the classroom context, although this panel is demonstrating the teaching opportunities that may exist outside of a single course or courses in international law.


Enforcement Of Intellectual Property At Trade Shows: A Comparative Perspective, Marketa Trimble Oct 2017

Enforcement Of Intellectual Property At Trade Shows: A Comparative Perspective, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials via webcast at a Roundtable on Protecting and Enforcing IP in the Trade Show Context hosted by the United States Patent and Trademark Office's Global Intellectual Property Academy in Alexandra, Virginia. Professor Trimble discussed various enforcement routes and their respective challenges. She also introduced mechanisms available in Europe and compared them to current mechanisms in the United States.


Single-Subject Constitutional Amendments, Richard Albert Oct 2017

Single-Subject Constitutional Amendments, Richard Albert

Boston College Law School Faculty Papers

What makes a constitution difficult to amend? The answer varies across jurisdictions. In the United States, for example, the threshold problem is getting two-thirds of Congress to initiate an amendment—a virtually impossibility in our present day given that Congress has a hard enough time agreeing by a simple majority to pass a simple law. In Australia and Switzerland, it is largely the combination of subnational approval and referendal ratification that complicates matters. In Canada—the subject of this paper—constitutional amendment difficulty derives from similar challenges associated with initiation and ratification but perhaps even more from the use of ...


The Published Works Of Sir Nigel Rodley, James W. Hart Oct 2017

The Published Works Of Sir Nigel Rodley, James W. Hart

Law Librarian Articles and Other Publications

This work is a comprehensive bibliography of the writings of Sir Nigel Rodley that was compiled for the Urban Morgan Human Rights Conference Honoring Sir Nigel Rodley that was held at the University of Cincinnati College of Law on October 28 and 29, 2017. It lists the books that he was the sole author of, books that he edited either solely or with others, chapters in books edited by others, journal articles, conference papers, book reviews, reports issued as part of his UN work, two manuscripts, introductions, forwards, comments, tributes, and obituaries. It does not list decisions of the UN ...


The Unfair Operation Principle And The Exclusionary Rule: On The Admissibility Of Illegally Obtained Evidence In Criminal Trials In India, Khagesh Gautam Oct 2017

The Unfair Operation Principle And The Exclusionary Rule: On The Admissibility Of Illegally Obtained Evidence In Criminal Trials In India, Khagesh Gautam

Khagesh Gautam

No abstract provided.


A Realist Systematic Review Of Cross-Sector Collaboration Implementation In Developing Countries & Mediation As A Useful Instrument, Jessica Kritz Oct 2017

A Realist Systematic Review Of Cross-Sector Collaboration Implementation In Developing Countries & Mediation As A Useful Instrument, Jessica Kritz

Pepperdine Dispute Resolution Law Journal

This review will provide a realistic systematic review to synthesize evidence on successful cross-sector collaboration implementation in developing (low and middle income) countries. More specifically, this review will explicitly consider interactions between strategy, context, and mechanisms to provide an indication as to how cross-sector collaboration governance helps some cross-sector collaboration succeed, grow, and become sustainable. This paper will also present mediation as potentially a useful mechanism to implement cross-sector collaboration implementation in developing countries.


Four Unconstitutional Constitutions And Their Democratic Foundations, Richard Albert Oct 2017

Four Unconstitutional Constitutions And Their Democratic Foundations, Richard Albert

Richard Albert

The present fascination with the global phenomenon of an unconstitutional constitutional amendment has left open the question whether a constitution can be unconstitutional. Invalidating a single amendment for violating the architectural core of a constitution is an extraordinary action, but it is occurring with increasing frequency around the world. But to call an entire constitution unconstitutional, however, seems different in both kind and degree. In this Article, I illustrate and evaluate four different conceptions of an unconstitutional constitution. Each conception draws from a different constitution currently in force around the world, specifically the Constitutions of Canada, Mexico, South Africa and ...


Post-Trial Judicial Review Of Criminal Convictions: A Comparative Study Of The United States And Finland, Christopher M. Johnson Oct 2017

Post-Trial Judicial Review Of Criminal Convictions: A Comparative Study Of The United States And Finland, Christopher M. Johnson

Maine Law Review

In 2011, two murder cases involving defendants who professed their innocence came to dramatic conclusions in appellate courts. In Finland in August 2011, the murder prosecution of Anneli Auer ended with her acquittal by an appellate court. In the United States in September 2011, the murder prosecution of Troy Davis ended in his execution in Georgia’s death chamber, despite exculpatory information developed after his trial about the reliability of some eyewitnesses identification evidence. The Finish case arose out if the December 2006 death if Jukka Lahti in Ulvila. His wife, Auer, called the police and claimed that an intruder ...


Law In Books And Law In Action: The Problem Of Legal Change, Jean-Louis Halperin Oct 2017

Law In Books And Law In Action: The Problem Of Legal Change, Jean-Louis Halperin

Maine Law Review

One hundred years ago, Roscoe Pound wrote his famous article, “Law in Books and Law in Action.” Considered an important step toward American legal realism, today this article is invoked more for its title than its content. I would argue that in the article, Pound did not clearly distinguish between two separate situations: (1) the departure of decisions of courts from statements of statutory (or constitutional) law, and (2) the discrepancy between doctrine in books and empirical data about law. This second observation has fed various strands of jurisprudence, if often only through the repetition of the well-quoted formula. It ...


Environmental Restorative Justice, Aiden Stark Oct 2017

Environmental Restorative Justice, Aiden Stark

Pepperdine Dispute Resolution Law Journal

Section I briefly introduces this article. Section II discusses the gravity of environmental crimes. Section III highlights the history of environmental criminal prosecution. Section IV explains how environmental crimes are currently prosecuted. Section V demonstrates how restorative justice procedures work. Section VI critiques the only previous analysis applying restorative justice to environmental crimes in the United States. Section Vll walks through Australian Justice Preston's analysis, which provides a proper foundation for applying restorative justice to environmental crimes. Section VIII applies Justice Preston's framework to criminal procedures in the United States. Section IX discusses criticisms that will be raised ...