Comparative and Foreign Law Commons^™

Too Much To Bare? A Comparative Analysis Of The Headscarf In France, Turkey, And The United States, Hera Hashmi

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Touro Law Review

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

Democracy, Courts And The Information Order, Gillian K. Hadfield, Dan Ryan

University of Southern California Law and Economics Working Paper Series

Conventional wisdom about civil litigation, both among scholars and political actors, holds that abuse of the legal process is common, that there is too much litigation, that it is “all about the money,” and that “a bad settlement is better than a good trial.” This constellation of attitudes that emphasize the economic function of law suggests that courts are an expensive conflict resolution mechanism of last resort and that their use would be minimized in a healthy market-based democracy. In this paper we apply a new sociological framework to understand the meaning and function of civil litigation in a democratic ...

Through A Latte, Darkly: Starbucks' Window Into Stateless Income Tax Planning, Edward D. Kleinbard

University of Southern California Law and Economics Working Paper Series

This paper uses Starbucks Corporation, the premier roaster, marketer and retailer of specialty coffee in the world, as an example of stateless income tax planning in action. “Stateless income” comprises income derived for tax purposes by a multinational group from business activities in a country other than the domicile of the group’s ultimate parent company, but which is subject to tax only in a jurisdiction that is neither the source of the factors of production through which the income was derived, nor the domicile of the group’s parent company.

The paper reviews both Starbucks’ recent U.K. tax ...

The Integrity Function And Asio’S Extraordinary Questioning And Detention Powers, Lisa Burton, George Williams

University of New South Wales Faculty of Law Research Series 2013

The Australian Security Intelligence Organisation Act 1979 (Cth ) permits ASIO to coercively question and detain non-suspects in order to gather intelligence about terrorism offences. This article examines the extensive checks and balances that constrain these powers, and whether they meet the standard embodied in the emerging concept of the ‘integrity function’. This involves elaboration of the content of the integrity function and its application in a problematic context, as ASIO must be permitted to act with some degree of secrecy, and executive judgments on matters of national security have long been considered unsuited to external scrutiny. This study illustrates the ...

Oversight Of National Security Secrecy In The United States, Stephen J. Schulhofer

New York University Public Law and Legal Theory Working Papers

Some secrecy in national security matters is appropriate and inevitable, but unilateral executive control over decisions whether to impose secrecy is not. Executive control over sensitive information presumes a unique executive expertise. Yet the executive branch is not the sole repository of the relevant knowledge and experience. Congress has considerable national security expertise, and courts have solid institutional capacities to elicit expertise. In any case, information-access judgments demand an appreciation for the value of both secrecy and transparency, and the ability to make fine-grained judgments that accommodate both. Yet national security officials are predisposed to abhor transparency. Courts offer not ...

The Extraterritoriality Of Eu Data Privacy Law - Its Theoretical Justification And Its Practical Effect On U.S. Businesses, Dan Jerker B. Svantesson

Dan Svantesson

Due to its extraterritorial effect, the European Union’s trailblazing data privacy law has long been a major concern for U.S. businesses. With the proposal for a new data privacy framework in the EU, with potential penalties of up to 2% of an offending enterprise’s annual worldwide turnover, such concerns are justified indeed; particularly as the EU at the same time seems to be expanding the extraterritorial reach of its data privacy law.

This article examines the extraterritoriality of current and proposed EU data privacy law and analyses whether those claims of extraterritoriality can be either justified or ...

Book Review: "Die Gemeinfreiheit: Begriff, Funktion, Dogmatik (The Public Domain: Concept, Function, Dogmatics)" By Alexander Peukert, Marketa Trimble

Scholarly Works

The reviewer considers a recent book by Alexander Peukert, the professor of civil and commercial law who specializes in international intellectual property law at Goethe University in Frankfurt am Main, Germany. Peukert has devoted the book to defining the limits of the public domain – the realm of intellectual activity in which works are free for anyone to use because the works are not protected by intellectual property rights, are protected but the protection has expired, are subject to an exception to the rights under the law, or are unprotected because the owner of the rights chooses not to enforce the ...

Australia’S 2012 Privacy Act Revisions: Weaker Principles, More Powers, Nigel Waters, Graham Greenleaf

University of New South Wales Faculty of Law Research Series 2013

The Australian Government’s Privacy Amendment (Enhancing Privacy Protection) Act 2012 was enacted on 29 November 2012 but will not commence until March 2014. It contains the first significant amendments to the Privacy Act 1988 since 2001. The whole process took nearly seven years since the Australian Law Reform Commission (ALRC) started work on its privacy reform reference. This article focusses on those aspects of the law which have been changed, for better or worse. We have previously analysed the deficiencies of the Bill in articles and submissions , and the Bill was enacted with none of those deficiencies removed.

The ...

The Business Exemption Of § 110(5) Of The Copyright Act Violates International Treaty Obligations Under Trips: Will Congress Honor Its Commitments?, Charles Leininger

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

(Re)Arrangement Of State/Islam Relations In Egypt’S Constitutional Transition, Gianluca Paolo Parolin

New York University Public Law and Legal Theory Working Papers

After briefly framing state/shari‘ah relations in pre-2011 Egypt, the paper (1) describes the negotiations behind the (re)arrangement of shari‘ah-provisions in the new constitution, (2) analyzes the content of the new provisions in their Hegelian relation to the previous Supreme Constitutional Court jurisprudence—expounding on the complex articulation of the explanatory note to art. 2 (art. 219)—, and (c) considers the ramifications of the new arrangement, focusing on the impact of the mandatory referral to al-Azhar (art. 4).

China’S Npc Standing Committee Privacy Decision: A Small Step, Not A Great Leap Forward, Graham Greenleaf

University of New South Wales Faculty of Law Research Series 2013

The Decision of the Standing Committee of the National People’s Congress (NPC Standing Committee) of December 28, 2012 concerning data privacy and the internet (‘2012 Decision’) is the highest level law yet enacted in China to deal specifically with data protection issues. This article analyses that Decision, comparing its content with the MIIT Regulation directed at the same IISPs, and covering much of the same ground (see G Greenleaf ‘China's Internet Data Privacy Regulations 2012: 80 Percent of a Great Leap Forward?’ available at ).

The conclusion is reached that, other than that this Decision comes from the high ...

Singapore’S New Data Protection Authority: Strong Enforcement Powers And Business Risks, Graham Greenleaf

University of New South Wales Faculty of Law Research Series 2013

Singapore’s Ministry of Communications and Information (MCI) has quickly brought into effect on 2 January 2013 the Personal Data Protection Act (PDPA) enacted in October 2012. This article analyses the enforcement aspects of the Act. The data protection principles in the Act are analysed in <http://ssrn.com/abstract=2212608>.

The structure and functions of the Personal Data Protection Commission are explained, and why it is not as an independent statutory authority. The artice examined the various methods of dispute resolution at its disposal; avenues of appeal; the extent of transparency of the complaint and appeals processes and the ...

When The State Harms Competition ― The Role For Competition Law, Eleanor M. Fox, Deborah Healey

New York University Law and Economics Working Papers

This article is about the reach of antitrust laws to proscribe or override anticompetitive acts and measures of the states. While it was once the case that antitrust (or competition) laws were reserved for private restraints, a more modern view of the state and the market recognizes the integral relationship between them. The authors surveyed 32 jurisdictions and found that antitrust/competition laws of a number of jurisdictions condemned certain state acts and measures. This article describes and summarizes the research and combines the research findings with conceptual analysis to recommend relevant rules and principles that might be adopted as ...

Social Welfare Reform: An Analysis Of Germany's Agenda 2010 Labor Market Reforms And The United States' Personal Responsibility And Work Opportunity Reconciliation Act (Prwora) Of 1996 , Jennifer Allison

Journal of the National Association of Administrative Law Judiciary

This comment presents a historical view of the social welfare systems in the United States and Germany. It then explains and analyzes recent large-scale reforms made to each country's social welfare system - the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 in the United States, which profoundly impacted the availability of welfare benefits to poor Americans, and Germany's Agenda 2013 campaign, which reformed Germany's system of providing benefits to the long-term unemployed.

Al-Skeini V. United Kingdom And Extraterritorial Jurisdiction Under The European Convention For Human Rights, Samantha Miko

Boston College International and Comparative Law Review

In July 2011, the European Court of Human Rights (ECtHR) issued its judgment in Al-Skeini v. United Kingdom. This case prompted the court to reconsider its conflicting lines of case law on the extraterritorial application of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In its decision, the court validated both the “effective control of an area” and “State agent authority” models of analysis, which had until Al-Skeini both been employed by the court at different times to analyze the ECHR’s extraterritorial application. Ultimately, however, the court ruled under an augmented version of the “State ...

Kiyutin: Protecting The Human Rights Of Persons Living With Hiv/Aids Beyond Immigration, Sarah Levitan

Boston College International and Comparative Law Review

People living with HIV/AIDS face many difficulties. After the European Court of Human Rights’ decision in Kiyutin v. Russia, these difficulties may be fewer. Viktor Kiyutin brought his case before the court after Russia denied him a residence permit because he was HIV-positive. Although very few countries still have travel restrictions or immigration bans discriminating against people with HIV/AIDS, the court’s holding sets an important precedent. In making its decision on the basis of the anti-discrimination provision of Article 14 of the European Convention on Human Rights, the court has now brought health status within the protection ...

Keeping Good Faith In Diplomacy: Negotiations And Jurisdiction In The Icj's Application Of The Cerd, William P. Lane

Boston College International and Comparative Law Review

The International Court of Justice (ICJ) refused jurisdiction in Georgia’s suit against Russia under the Convention on Elimination of All Forms of Racial Discrimination, finding that the treaty’s jurisdictional clause, which limits jurisdiction to unsettled disputes, did not apply in the absence of good-faith negotiation. The court reversed its provisional measures order, which entertained jurisdiction, and continued a line of cases holding that clauses like the treaty’s jurisdictional clause serve mainly to give the parties notice of the dispute. The ICJ’s ruling noted that these clauses also reflect limits on parties’ consent to jurisdiction and a ...

Great Accountability Should Accompany Great Power: The Ecj And The U.N. Security Council In Kadi I & Ii, Vanessa Arslanian

Boston College International and Comparative Law Review

Over a decade ago, the United Nations (UN) Security Council added Yassin Abdullah Kadi’s name to a list of hundreds of individuals suspected of associating with Al-Qaida and the Taliban. The Security Council directed UN Member States to freeze the listed individuals’ assets and to limit their travel. The Council of the European Union (EC) subsequently passed regulations giving direct effect to the UN sanctions regime. In 2008, the European Court of Justice (ECJ) annulled one such implementing regulation, but assigned responsibility for remedying considerable due process defects inherent in the regime to Community institutions rather than the UN ...

Regulating Banking Bonuses In The European Union: A Case Study In Unintended Consequences, Kevin J. Murphy

University of Southern California Law and Economics Working Paper Series

On 27 February 2013, the European Union (EU) reached a provisional deal to limit the amount of bankers' bonuses to the amount of fixed remuneration (i.e., a one-to-one ratio); the cap could be increased to 2:1 with the backing of a supermajority of shareholders. I demonstrate that the pending EU regulations restrictions will: (1) increase rather than decrease incentives for excessive risk taking; (2) result in significant increase in fixed remuneration; (3) reduce incentives to create value; (4) reduce the competitiveness of the EU banking sector; and (5) result in a general degradation in the quality of EU ...