Comparative and Foreign Law Commons^™

Looted Cultural Objects, Elena Baylis

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In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice for individual museums to make, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. …

The Commodification Of Public Land Records, Reid Kress Weisbord, Stewart E. Sterk

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The United States deed recording system alters the “first in time, first in right” doctrine to enable good faith purchasers to record their deeds to protect themselves against prior unrecorded conveyances and to provide constructive notice of their interests to potential subsequent purchasers. Constructive notice, however, works only when land records are available for public inspection, a practice that had long proved uncontroversial. For centuries, deed archives were almost exclusively patronized by land-transacting parties because the difficulty and cost of title examination deterred nearly everyone else.

The modern information economy, however, propelled this staid corner of property law into a …

Equality Adds Quality: On Upgrading Higher Education And Research In The Field Of Law, Susanne Baer

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Much has been attempted, and many pro1ects are still underway aimed at achieving equality in higher education and research. Today, the key argument to demand and support the integration of gender in academia is that equality is indeed about the quality on which academic work is supposed to be based. Although more or less national political, social and cultural contexts matter as much as academic environments, regarding higher education and research, the integration of gender into the field of law seems particularly interesting. Faculties of law enjoy a certain standing and status, are closely connected to power and politics, and …

Ancient Worries And Modern Fears: Different Roots And Common Effects Of U.S. And Eu Privacy Regulation, David Thaw, Pierluigi Perri

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Much legal and technical scholarship discusses the differing views of the United States and European Union toward privacy concepts and regulation. A substantial amount of effort in recent years, in both research and policy, focuses on attempting to reconcile these viewpoints searching for a common framework with a common level of protection for citizens from both sides of Atlantic. Reconciliation, we argue, misunderstands the nature of the challenge facing effective cross-border data flows. No such reconciliation can occur without abdication of some sovereign authority of nations, that would require the adoption of an international agreement with typical tools of international …

The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg, Suzanne Baer

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First, I will briefly summarize the state of the art of equality law in Germany today. A distinct dimension of this story from a European Union member state is that we are not just theorizing postnational constitutionalism these days, but that we live it already, since law is not anymore isolated as national but needs to be seen in the context of transnational migration and multinational regimes. Second, I turn to a key feature and key challenge in and to equality law today. It is what I have called the triangle of fundamental rights, referring to the three most prominent …

The Basic Law At 60 - Equality And Difference: A Proposal For The Guest List To The Birthday Party, Susanne Baer

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The German constitution, named "Basic Law", has proven to work although many did not believe in it when it was framed. Others emphasize desiderata. Sabine Berghahn commented at the 50th birthday that it has developed "far too slowly and [some] has even gone completely wrong." ' Jutta Limbach, former President of the Federal Constitutional Court, observed that constitutional history was "anything but regal, but very difficult and full of obstacles. '' 2 Former Chancellor Willy Brandt famously called the constitution "a snail on thin ice." So what is missing when we analyze the Basic Law, and what should be finally …

A Closer Look At Law: Human Rights As Multi-Level Sites Of Struggles Over Multi-Dimensional Equality, Susanne Baer

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In many societies, deep conflicts arise around religious matters, and around equality. Often, religious collectives demand the right to self-determination of issues considered - by them - to be their own, and these demands collide with individual rights to, again, religious freedom. These are thus conflicts of religion v. religion. Then, collective religious freedom tends to become an obligation for all those who are defined as belonging to the collective, which carries the problem that mostly elites define its meaning and they silence dissent. Usually, such obligations are also unequal relating to gender, with different regimes for women and for …

Rethinking Subsidiarity In International Human Rights Adjudication, William M. Carter Jr.

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This article suggests that a re-evaluation of the principle of subsidiarity is in order. While I make no sweeping claims that the principle of subsidiarity is always preferable or always undesirable, I do suggest that a close look at the myriad ways in which subsidiarity applies reveals that it may sometimes impede, rather than advance, the cause it purports to serve: namely, achieving universality of human rights. This article identifies situations where subsidiarity is more likely to diminish human rights protections that it is to advance them and suggests that subsidiarity should be abandoned or minimized in such areas.

Grados De Libertad: Democracia Y Antidemocracia En Cuby Y Luisiana, 1898-1900, Rebecca J. Scott

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This comparative study between the quest for political racial inclusivity in 1890s Louisiana and the fight against state-sanctioned racialized violence in Cuba in the early 1900s exposes similarities, tensions, and differences between the two systems. The article traces the evolving contests for citizenship and suffrage in each climate at the end of the 19th century and into the beginning of the twentieth, juxtaposing the expression of race, suffrage, and citizenship in the constitution and political climate of each locale. In 1898, the new Louisiana state constitution disenfranchised African-Americans, while in 1900 Cuba was positioning itself for a grant of universal …

Race, Religion And Law: The Tension Between Spirit And Its Institutionalization, George H. Taylor

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My reflections flow from some recent writings by the critical race scholar Derrick Bell. Bell acknowledges that in prior work he has focused on the "the economic, political, and cultural dimensions of racism" but now suggests the possibility of a "deeper foundation" arising from the conjunction that "[m]ost racists are also Christians." This statement is Bell at his best: at once both extremely provocative and extremely unsettling. I want to explore and develop two aspects of Bell's argument.

First, if we want to examine and understand the many dimensions of racism, it is not enough to employ economic, political, or …

Minority Rights, Minority Wrongs, Elena Baylis

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Many of the new democracies established in the last twenty years are severely ethnically divided, with numerous minority groups, languages, and religions. As part of the process of democratization, there has also been an explosion of “national human rights institutions,” that is, independent government agencies whose purpose is to promote enforcement of human rights. But despite the significance of minority concerns to the stability and success of these new democracies, and despite the relevance of minority rights to the mandates of national human rights institutions, a surprisingly limited number of national human rights institutions have directed programs and resources to …

Courts As Forums For Protest, Jules Lobel

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For almost half a century, scholars, judges and politicians have debated two competing models of the judiciary's role in a democratic society. The mainstream model views courts as arbiters of disputes between private individuals asserting particular rights. The reform upsurge of the 1960s and 1970s led many to argue that courts are not merely forums to settle private disputes, but can also be used as instruments of societal change. Academics termed the emerging model the hein"public law" or "institutional reform" model.

The ongoing debate between these two views of the judicial role has obscured a third model of the role …

Freedom Of Expression In A Pluralistic Society, James W. Nickel

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No abstract provided.

Preferential Policies In Hiring And Admissions, James W. Nickel

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No abstract provided.