Comparative and Foreign Law Commons^™

Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp

All Faculty Scholarship

One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them.

Intellectual history in the United States went into decline because …

Migrant Workers' Access To Justice At Home: Nepal, Sarah Paoletti, Eleanor Taylor-Nicholson, Bandita Sijapati, Bassina Farbenblum

All Faculty Scholarship

Nepal’s citizens engage in foreign employment at the highest per capita rate of any other country in Asia, and their remittances account for 25 percent of the country’s GDP. The Middle East is now the most popular destination for Nepalis--nearly 700,000 were working in the Middle East in 2011 on temporary labor contracts. For some Nepalis, working abroad provides much-needed household wealth. For others, their contributions to Nepal come at great personal cost. Migrant workers in the Gulf, for example, routinely report wage theft, lack of time off and unsafe and unhealthy working conditions. Some migrant workers report psychological and …

U.S. Vs. European Broadband Deployment: What Do The Data Say?, Christopher S. Yoo

All Faculty Scholarship

As the Internet becomes more important to the everyday lives of people around the world, commentators have tried to identify the best policies increasing the deployment and adoption of high-speed broadband technologies. Some claim that the European model of service-based competition, induced by telephone-style regulation, has outperformed the facilities-based competition underlying the US approach to promoting broadband deployment. The mapping studies conducted by the US and the EU for 2011 and 2012 reveal that the US led the EU in many broadband metrics.

• High-Speed Access: A far greater percentage of US households had access to Next Generation Access (NGA) …

Developments In The Right To Defence For Juvenile Offenders Since Vietnam’S Ratification Of The Convention On The Rights Of The Child, Thi Thanh Nga Pham

East Asia Law Review

This article examines Vietnam’s legal changes and law enforcement practices in regards to the right to defence of juvenile offenders since Vietnam ratified the United Nations Convention on the Rights of the Child in 1990. A combination of research methods is employed, including document analysis, statistical analysis, and selected case studies. The findings of the research indicate that Vietnam has demonstrated considerable improvement in acknowledging the right to defence of juvenile offenders in its law. The contemporary Vietnamese regulations are similar to the CRC’s requirements about legal assistance for juvenile offenders. The implementation of the law, however, confronts difficulties as …

The Crime Of Engaging In Prostitution With An Underage Girl In Chinese Criminal Law, Xiaosong Duan

East Asia Law Review

No abstract provided.

Transitional Justice In South Korea: One Country’S Restless Search For Truth And Reconciliation, Paul Hanley

East Asia Law Review

A recent Korean film, “National Security”, about a democracy activist and former Korean politician, Kim Geun-Tae, who was kidnapped and tortured into making a false confession by police in 1985, has renewed debate among South Koreans about the state of transitional justice in the country. From 1995 to 2010, South Korea took a number of steps to expose the political oppressions and human rights abuses of its past authoritarian governments and to assist individuals involved in the struggle for democracy to clear their names and restore their reputations. This article analyzes the relative success and failure of South Korea’s truth …

Editors' Note

East Asia Law Review

No abstract provided.

The New Drug Detoxification System In China: A Misused Tool For Drug Rehabilitation, Enshen Li

East Asia Law Review

Since 2008, China has established a new drug detoxification system to supersede the old mechanism that relied on administrative custodial measures for drug treatment. The new system introduces a three-tiered mechanism of voluntary, community and coercive drug detoxification, which aims at the physical, psychological and social aspects of drug-dependence treatment of addicts. However, although the new drug detoxification system seems to serve as a scientific and human-centered drug treatment tool, its practices appear to be rather different from the official rationales. Through three case studies in Guangzhou, Shanghai and Kunming, this article focuses on the legal deficiencies, theoretical inconsistencies and …

Patent Litigation In China From A Comparative Perspective, Jason Ma

East Asia Law Review

No abstract provided.

Ip Enforcement: Domestic And Foreign Litigants In The Itc And U.S. District Courts, Matthew N. Bathon

East Asia Law Review

No abstract provided.

Counterfeiting In China, Daniel C. Fleming

East Asia Law Review

No abstract provided.

Legitimacy-Based Discrimination And The Development Of The Judicial Power In Japan As Seen Through Two Supreme Court Cases, Colin P. A. Jones

East Asia Law Review

In September of 2013 the Supreme Court of Japan issued two judgments dealing with the constitutionality of statutory schemes that discriminated based on legitimacy. The first case resulted in the Court finding the provision unconstitutional, a rare occurrence in Japan. The second case found no constitutional problem to exist. This article will compare and contrast the two decisions while explaining the family law context in which they arose. It also offers an explanation of how the Court could arrive at two seemingly contradictory conclusions at almost the same time in its history.

A Us/India Model For China’S Ethnic Policies: Is The Cure Worse Than The Disease?, Barry Sautman

East Asia Law Review

Some scholars in China argue that minority rights inscribed in law, such as ethnic regional autonomy and preferential policies, must be reformed along liberal lines: minorities should be “depoliticized” -- treated as cultural groups whose members have only individual, not collective, rights. They propose a “second generation of ethnic policies” for China that they argue would resemble policies in the United States and India. This article shows, however, that the United States and India do not have the features of ethnic equity and peace that they are supposed to exemplify, as their minorities have subordinate, deteriorating social positions and are …

Masthead

East Asia Law Review

No abstract provided.

The Yet-To-Be Effective But Effective Tax: Hong Kong's Buyer's Stamp Duty As A Critical Case Study Of Legislation By Press Release, Jianlin Chen

East Asia Law Review

No abstract provided.

Licensing Intellectual Property In China, Lei Mei

East Asia Law Review

No abstract provided.

Ip-Related Anti-Monopoly And Anti-Unfair Competition Enforcement In China, Lipeng Mei

East Asia Law Review

No abstract provided.

Emergency Arbitrator Procedure And Open-List Arbitrator Appointment Under The New China (Shanghai) Pilot Free Trade Zone Arbitration Rules: Dawn Of A New Era?, Rui Bu

East Asia Law Review

No abstract provided.

Private Enforcement Of Statutory And Administrative Law In The United States (And Other Common Law Countries), Stephen B. Burbank, Sean Farhang, Herbert M. Kritzer

All Faculty Scholarship

Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development …

No Alternative: Resolving Disputes Japanese Style, Eric Feldman

All Faculty Scholarship

This article critiques the simple black/white categorisation of mainstream versus alternative dispute resolution, and argues that what is needed is a cartography of dispute resolution institutions that maps the full range of approaches and traces their interaction. It sketches the first lines of such a map by describing two examples of conflict resolution in Japan. Neither can justly be called “alternative”, yet neither fits the mould of what might be called mainstream or classical dispute resolution. One, judicial settlement, focuses on process; the other, compensating victims of the Fukushima disaster, engages a specific event. Together, they help to illustrate why …

Corporate Governance And Social Welfare In The Common Law World, David A. Skeel Jr.

All Faculty Scholarship

The newest addition to the spate of recent theories of comparative corporate governance is Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power, an important new book by Christopher Bruner. Focusing on the U.S., the U.K., Canada and Australia, Bruner argues that the robustness of the country’s social welfare system is the key determinant of the extent to which its corporate governance is shareholder-centered. This explains why corporate governance is so shareholder-oriented in the United Kingdom, which has universal healthcare and generous unemployment benefits, while shareholders’ powers are more attenuated in the United States, with its …

Waiting For Perseus: A Sur-Reply To Professors Graetz And Warren, Ruth Mason, Michael S. Knoll

All Faculty Scholarship

This manuscript responds to Income Tax Discrimination: Still Stuck in a Labyrinth of Impossibility by Professors Michael Graetz and Alvin Warren (121 Yale L.J. 1118). In that article, Professors Graetz and Warren challenge many of the arguments we made in our own article entitled, “What is Tax Discrimination?” (121 Yale L.J. 1014). In our earlier article, we set out to accomplish two goals. First, we sought to identify the principle behind the doctrine of tax discrimination as that doctrine is applied by the U.S. Supreme Court and the Court of Justice of the European Union (ECJ) and to translate that …

Harmonizing Choice-Of-Law Rules For International Insolvency Cases: Virtual Territoriality, Virtual Universalism, And The Problem Of Local Interests, Charles W. Mooney Jr.

All Faculty Scholarship

This paper explores the potential content and feasibility of a set of harmonized choice of law rules (HICOL Rules) that would apply in insolvency proceedings. It contemplates a main insolvency proceeding opened in a debtor’s center of main interests (“COMI”) and the existence of (or possibility of opening) one or more non-main (or secondary) proceedings. It also contemplates the possibility that an insolvency representative in a main or non-main proceeding may seek and be granted recognition in another state under the UNCITRAL Model Law on Cross-Border Insolvency (codified as Chapter 15 of the Bankruptcy Code in the U.S.) Under HICOL …

Soft Law As Foreign Relations Law, Jean Galbraith, David Zaring

All Faculty Scholarship

The United States increasingly relies on “soft law” and, in particular, on cooperation with foreign regulators to make domestic policy. The implementation of soft law at home is typically understood to depend on administrative law, as it is American agencies that implement the deals they conclude with their foreign counterparts. But that understanding has led courts and scholars to raise questions about whether soft law made abroad can possibly meet the doctrinal requirements of the domestic discipline. This Article proposes a new doctrinal understanding of soft law implementation. It argues that, properly understood, soft law implementation lies at the intersection …