Law Commons^™

Judicial Independence And Party Politics In The Kelsenian Constitutional Courts: The Case Of Portugal, Sofia Amaral-Garcia, Nuno M. Garoupa, Veronica Grembi

Faculty Scholarship

In this paper we test to what extent the Kelsenian-type of constitutional judges are independent from political parties by studying of the Portuguese Constitutional Court. The results yield three main conclusions. First, constitutional judges in Portugal are quite sensitive to their political affiliations and their political party's presence in government when voting. Second, peer pressure is very relevant. Third, the 1997 reform that was enacted to increase judicial independence has had no robust statistically significant effect.

Dying To Dine: A Story Of The Suicidal Indian Farmers, Srividhya Ragavan

Faculty Scholarship

The realities of the food crisis form the background to the discussion of India’s endeavor to tackle the issues relating to agriculture with special emphasis on the nation’s efforts to promote farmers’ rights under the Protection of Plant Varieties and Farmers’ Rights Act, 2004 (PPVFA). The story of the PPVFA is interesting because the legislation represents India’s fulfillment of its international obligations by introducing breeders’ rights while simultaneously recognizing farmers’ traditional rights. Thus, Part I of this article outlines the steps India took to promote farmers’ rights as part of enacting a legislation to protect breeders’ rights to fulfill its …

Comity And Foreign Parallel Proceedings: A Reply To Black And Swan. Lloyd’S Underwriters V. Cominco Ltd., Austen L. Parrish

Articles by Maurer Faculty

Lloyd's Underwriters v. Cominco Ltd., is a potentially seminal case, currently pending before the Supreme Court of Canada. The case involves the issue of whether Canadian courts should stay litigation in the face of duplicative foreign proceedings. This reply responds to Vaughan Black's and John Swan's comment on the Lloyd's case, which was published in volume 46 of the Canadian Business Law Journal.

The reply argues that although Black and Swan have important insights into judgment enforcement when competing, inconsistent decisions exist, their analysis too readily skips over the first-to-file rule and underestimates the costs of reactive litigation. Canadian courts …

Who's Afraid Of Polygamy? Exploring The Boundaries Of Family, Equality And Custom In South Africa, Penelope Andrews

Articles & Chapters

South Africa's post-apartheid constitution has been widely admired and constantly referenced by international scholars, and especially international human rights scholars, for its comprehensive embrace of gender equality. But the commitment to gender equality has been tested by other liberatory discourses, including African nationalism and cultural and religious autonomy. This Article examines the evolution of South African legislation and constitutional jurisprudence in the face of competing imperatives, for example, between equality, legal pluralism, customary law/religious law, and the recognition of polygamy. In particular, it focuses on the Recognition of Customary Marriages Act, a statute that purports to regulate customary marriages, including …

Cuotas Y Tasa Suplementaria En El Sector Lácteo En Cataluña [Quota And Super Levy In The Cow Milk Sector], Vanessa Casado-Pérez, Anna Ginès-Fabrellas, Patricia Gómez-González, Aroa Saiz-Jiménez

Faculty Scholarship

El Reglamento 856/84/CE instaura en el seno de la Unión Europea el régimen de cuotas lecheras y tasa suplementaria, con la finalidad de restringir la producción de leche de vaca. Dicha limitación al libre mercado ha afectado al precio de la leche y ha generado transformaciones importantes en la estructura productiva del sector ganadero catalán. Actualmente se debate la posibilidad de la supresión del régimen de cuotas lecheras y tasa suplementaria. La supresión de esta medida proteccionista conllevaría un aumento de la producción, una caída en el precio y una mayor intensificación de las explotaciones ganaderas. El objetivo de este …

Reactions: Natsu Taylor Saito's 'Colonial Presumptions: The War On Terror And The Roots Of American Exceptionalism', Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

Is the word "civilization," evoked by Bush in contemporary times, the direct genealogical descendant of the mission civilatrice evoked by his Anglo Saxon predecessors to justify their onslaught on the native inhabitants of the land they have chosen to settle and appropriate? Is the contemporary project by the current political elites of the US to "spread democracy in the Middle East" the same as and co-equal with the mission to civilize the "beast" in the lands where "beasts" wandered two centuries ago? If the ethno/race of the old mission was Anglo Saxon, what is its contemporary ethnic/race today? Does the …

The Boundary Of Futures Regulation: From U.K. And U.S. Judgments Regarding Commodity Forward Contracts, Christopher Chao-Hung Chen

Research Collection Yong Pung How School Of Law

No abstract provided.

Analytical Jurisprudence And The Concept Of Commercial Law, John Linarelli

Scholarly Works

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond …

Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks

Faculty Journal Articles and Book Chapters

On March 1, 2009, the Special Tribunal for Lebanon (STL) commenced operations in the Netherlands. The mandate of the STL is to try those allegedly responsible for the 2005 bombing in Beirut which killed former Lebanese Prime Minister Rafiq Hariri. A collaborative effort between Lebanon and the United Nations, the STL is to be of “international character based on the highest standards of justice.” However, the STL’s in absentia trial provisions are based on a far different, and lower, standard. This article posits that the STL’s in absentia trial provisions violate human rights norms, indeed the U.N. expressly rejected such …

The Kosovo Crisis: A Dostoievskian Dialogue On International Law, Statecraft, And Soulcraft, Antonio F. Perez, Robert J. Delahunty

Scholarly Articles

The secession of Kosovo from Serbia in February 2008 represents a stage in the unfolding of a revolution of "constitutional" dimensions in International Law that began with NATO's 1999 intervention in Kosovo against Serbia. NATO's intervention called into question the authority and viability of U.N. Charter system for maintaining international peace. Likewise, the West's decision in 2008 to support Kosovo's secession from Serbia dealt a further blow to the central post-War legal rules and institutions for controlling and mitigating Great power rivalry. Russia's later support for South Ossetia's secession from Georgia demonstrated the potential that the Kosovo precedent has for …

Making People Illegal: What Globalization Means For Migration And Law, Catherine Dauvergne

All Faculty Publications

This book examines the relationship between illegal migration and globalization. Under the pressures of globalizing forces, migration law is transformed into the last bastion of sovereignty. This explains the worldwide crackdown on extra-legal migration and informs the shape this crackdown is taking. It also means that migration law reflects key facets of globalization and addresses the central debates of globalization theory. This book looks at various migration law settings, asserting that differing but related globalization effects are discernible at each location. The ‘core samples’ interrogated in the book are drawn from refugee law, illegal labor migration, human trafficking, security issues …

China's Restructured Commercial Banks: Nomenklatura, Nicholas C. Howson

Book Chapters

In the wake of the Asian Financial Crisis of 1997-98, and accelerating after 2003 the People's Republic of China (PRC or China) has implemented an ambitious reform program directed at the commanding heights of what once pa ed for China ' financial system-the large state-owned and state-managed commercial banks. Contrary to a good deal of advice offered by policy and finance specialists, China did not liquidate or fully privatize these institutions. Instead, the PRC sought to avoid the significant social (and no doubt political) cost associated with liquidation, or real privatization, by instead changing (1) the internal dynamics of, and …

Interrogation And Silence: A Comparative Study, Craig M. Bradley

Articles by Maurer Faculty

This article examines interrogation practices in detail in three systems: the American, the English (and Welsh), and the Canadian while also discussing rules from various other countries. It considers when the Miranda-type warnings (required in all three systems) must be given and when suspects will be deemed to have waived their rights. This article further discusses how reliability and voluntariness of confession is assured. Finally, a particular emphasis is placed on the issue of when a suspect's silence during interrogation may be used against him in court. The article concludes that American courts have not done enough to ensure reliability …

Europeanization As A Process: Thoughts On The Europeanization Of Private Law, Christian Joerges

Faculty Scholarship

Professor Christian Joerges delivered the Second Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2003 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Professor Joerges puts forth a three part thesis concerning the “Europeanization of Private Law”, the process by which the European Community influences the legal and political policies of its member states within a framework of transnational cooperation. Joerges first establishes the eroding importance of the idea that legal systems operating at the national level fulfill the goals of …

Law, Society, And Medical Malpractice Litigation In Japan, Eric Feldman

All Faculty Scholarship

No abstract provided.

Pitfalls In Patenting Publicly Funded Research - Comments On Draft South African Regulations, Matthew Herder, Cynthia M. Ho

Articles, Book Chapters, & Popular Press

South Africa recently enacted legislation similar to the US. Bayh-Dole Act, which permits publicly funded institutions to obtain patent rights in hopes that the patent incentive will foster commercialization, as well as generate revenues to the funded institutions and scientists. While enacting analogs to Bayh-Dole seems presently in vogue, there are definitely concerned about the original legislation that have been voiced. When South Africa recently published proposed guidelines implementing its version of Bayh-Dole, it broadly opened up the opportunity for public comments. The attached paper discusses some of concerns, including problems with delaying timely knowledge dissemination and the need to …

Harmonizing European Copyright Law: The Challenges Of Better Lawmaking, Mireille Van Eechoud, P Bernt Hugenholtz, Stef Van Gompel, Lucie Guibault, Natali Helberger

Articles, Book Chapters, & Popular Press

Nobody likes today’s copyright law. Widespread unauthorized use of copyright material proliferates with impunity, while citizens and users protest that intrusive copyright and related rights law stifle cultural expression. Equipment manufacturers and intermediaries complain about yet more ’security’ features that complicate their products and services and encumber marketing, while content owners desperately want enforcement to work. And of course it is crucial that whatever regulatory instruments come into play must not age prematurely in Internet time. The European Union faces the daunting challenge of articulating coherent copyright policies that satisfy these contradictory multiple demands. Yet the legal framework must conform …

Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.

Agency Accountability Strategies After Liberalization: Universal Service In The United Kingdom, France, And Sweden, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.

Turkey: At The Crossroads Of Secular West And Traditional East, Padideh Ala'i

Articles in Law Reviews & Other Academic Journals

On January 9, 2008 Washington College of Law at American University sponsored a conference entitled: Turkey: At the Crossroads of Secular West and Traditional East. This conference was percipitated by the recent election of the AKP party in Turkey and my trip to Turkey in summer 2007. In this short introduction to the American University International law Review symposium issue, I summarize the major issues raised in that one day conference specifically by Dean Haluk Kabaalioglu of Yeditepe University Facutly of Law, expert on EU law and Turkish-EU relations,and Professor Feroz Ahmad, the learned historian of modern Turkey. The aim …

On Law And The Transition To Market: The Case Of Egypt, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

On the eve of independence from European colonialism, Egypt, like most other developing countries, undertook the project of de-linking itself from colonial economy by initiating domestic industrialization. The economic project known as Import Substitution Industrialization (“ISI”) was designed to liberate Egypt from raw commodity production--specifically, agricultural and mineral--servicing its previous colonial master, Great Britain. The engine of development would be an expanding public sector with nationalization and socialism as leitmotifs. In re-orienting the economy towards industrial production, Egypt hoped that the terms of trade with the international economy would significantly improve, thereby leading to an improvement in the living standards …

Planting The Promised Landscape: Zionism, Nature, And Resistance In Israel/Palestine, Irus Braverman

Journal Articles

This article reveals the complex historical and cultural processes that have led to the symbiotic identification between pine trees and Jewish people in Israel/Palestine. It introduces three tree donation techniques used by Israel, then proceeds to discuss the meaning of nature in Israel, as well as the meaning of planting and rooting in the context of the Zionist project. The article concludes by reflecting on the ways that pine trees absent Palestinian presence and memory from the landscape, and explains how Palestinian acts of aggression toward these pine landscapes relate to the Israel/Palestine relationship.

Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Faculty Scholarship

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …

London As Delaware?, Adam C. Pritchard

Articles

In the United States, state corporate law determines most questions of internal corporate governance - the role of directors; the allocation of authority between directors, managers, and shareholders; etc. - while federal law governs questions of disclosure to shareholders - annual reports, proxy statements, and periodic filings. Despite substantial incursions by Congress, most recently with the Sarbanes-Oxley Act, this dividing line between state and federal law persists, so state law arguably has the most immediate effect on corporate governance outcomes.

The Impact Of Sovereign Wealth Funds On The Regulation Of Foreign Direct Investment In Strategic Industries: A Comparative View, Maya Steinitz, Michael Ingrassia

Faculty Scholarship

Investments by sovereign wealth funds ('SWFs') - pools of capital accumulated by and under the control of sovereign states, mostly from the Persian Gulf and East Asia - in European and North American companies have changed dramatically both in scope and in nature in the last few years. In terms of scope, SWFs are estimated to currently control USD$2-3 trillion in assets - more than all hedge funds and private equity funds combined - and within the next five years, they are expected to direct USD$6-10 trillion in assets.' In terms of the nature of the investments made, these funds …

Dream Palaces Of Law: Western Constructions Of The Muslim Legal World, Haider Ala Hamoudi

Articles

Western distortions of the Muslim East nearly always take the same form, irrespective of who in the West is doing the distorting. One common theme can be generally gleaned from any projections of the Muslim East in the West, in any Western country, among nearly every community, including, and perhaps especially, our own academic community. This is the perception of the near ubiquitous role of Islam and, more germane to my remarks, Islamic law, of a historic, medieval kind, in governing the legal order of Muslim states, including Iraq, in a manner that can be entirely distorting. In these brief …

Comparative Law And The Legal Origins Thesis: [N]On Scholae Sed Vitae Discimus, Vivian Grosswald Curran

Articles

This essay offers some suggestions for comparative law’s discomfort with the Legal Origins Thesis. The Legal Origins Thesis then becomes the point of departure for a discussion of contemporary comparative law’s “existential angst.”

Between Realism And Resistance: Shi'i Islam And The Contemporary Liberal State, Haider Ala Hamoudi

Articles

No abstract provided.

Voices Saved From Vanishing, Vivian Grosswald Curran

Articles

Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain examines the lives of eighteen émigré lawyers and legal scholars who made their way to the United Kingdom, almost all to escape Nazism, and analyzes their impact on the development of English law.

Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand

Articles

This article considers Chief Justice Roberts' majority opinion in the case of Medellin v. Texas. Like much of the commentary on this case, the article considers the international law implications of the opinion and its consideration of the doctrine of self-executing treaties. The primary focus here, however, consistent with the symposium in which this paper was presented, is on the opinion's implications for the separation of powers and for federalism. While the opinion's discussion of international law and treaty implementation can be considered dicta, the separation of powers and federalism portions may be seen as more directly necessary to …