Law Commons^™

Rétrospectives Et Perspectives Sur La Place Du Droit Comparé Dans La Jurisprudence Du Conseil Constitutionnel, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

The Hidden Gender Of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Law In The United States And Australia, Deborah A. Widiss

Articles by Maurer Faculty

The United States and Australia are unusual in their approach to providing paid time off to new parents. Virtually every other country in the world provides maternity leaves that are far longer than paternity leaves, even if they also provide supplemental parental leave available to either parent. Recently-enacted laws in the United States and Australia, by contrast, eschew sex-specific classifications entirely. But, while both adopt gender-neutral approaches, they are structured quite differently. American laws provide each parent equal and non-transferable benefits; Australian law provides an extended period of benefits to a “primary” caregiver, and a much shorter period of benefits …

La Privatización, La Desregulación Y El Interés Público: Un Análisis Comparado, Alfred C. Aman

Articles by Maurer Faculty

This Spanish-language paper analyzes the structural elements of Administrative Law in the United States of America, such as deregulation and privatization, which define the particular relationship between State and Society in that country. The analysis focuses on the limits to privatization in some sectors (prisons, water, health care) using a comparative approach with Spain. From a critical position with the marketization and hegemony of economics, alternatives are proposed for a reform of the Administrative Law that allows a more democratic and inclusive functioning of the governmental institutions.

Foreign Nations, Constitutional Rights, And International Law, Austen L. Parrish

Articles by Maurer Faculty

No abstract provided.

Comments On Executive Rulemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Brexit By Susan Rose-Ackerman, Nicholas Almendares

Articles by Maurer Faculty

No abstract provided.

French Constitutionalism, Elisabeth Zoller

Articles by Maurer Faculty

From the Foreword:

We are particularly pleased that this first special issue gives the opportunity to celebrate the sixtieth anniversary of the Fifth Republic’s Constitution. Readers will find an enlightened vision of French constitutionalism, so patiently depicted by our colleague Elisabeth Zoller through a life of teachings and research, both in France and in the United States. Defined as “a political doctrine that aims to guarantee political freedom, i.e. the freedom we enjoy in respect of political power, as opposed to civil liberty, which we enjoy in respect of our peers”, constitutionalism has, in France, a profoundly unique character according …

Federalism And Gender Equality, Susan H. Williams

Articles by Maurer Faculty

Despite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on this intersection, to apply the insights of that literature to the case of Myanmar, and to offer a contribution concerning the theoretical connections between federalism and gender equality. The analysis generates four primary conclusions. First, federalism is inherently neither good nor bad for gender equality: it all depends on the details of the federal system and …

Legal Activism In The Face Of Political Challenges: The Nigerian Case, Jayanth K. Krishnan, Kunle Ajagbe

Articles by Maurer Faculty

Countries that move from authoritarianism to democracy often see increased rights-based, social justice lawyering after the transition. Given the new freedoms and opportunities present, this outcome is hardly surprising. However, relying on a literature and theoretical frame developed over the past two decades, this study argues that, in fact, such lawyering can have its historical roots in the legal activism that occurred during previous authoritarian periods. Consider Africa’s most populous country – Nigeria. Since gaining independence in 1960, Nigeria has witnessed, in total, nearly 30 years of military dictatorship. In 1999, the country adopted a democratic system of government, which …

La Méthode Comparative En Droit Public, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Determining The Territorial Scope Of State Law In Interstate And International Conflicts: Comments On The Draft Restatement (Third) And On The Role Of Party Autonomy, Hannah L. Buxbaum

Articles by Maurer Faculty

Analyzing a conflict of laws requires thinking both about the scope of potentially applicable law and about priority, or choice, among potentially applicable laws. The Restatement (Second) of Conflict of Laws, published in 1971, contains little guidance on how, or in what order, courts are to address these two inquiries. The draft Restatement (Third), in contrast, differentiates clearly the respective roles of the two analytical elements. It characterizes the resolution of a choice-of-law question as a two-step process. First, the scope of the relevant states’ internal laws must be determined, in order to ascertain which states’ laws might be used …

Judicial Power, The Judicial Power Project And The Uk, Paul Craig

Articles by Maurer Faculty

It is axiomatic that all power requires justification, and that is equally true for judicial power as for other species thereof. This article is primarily concerned with judicial power in the UK. The subject will be approached through consideration of the Judicial Power Project, which has been critical of the courts, much of this being sharp-edged, and fierce. There is repeated talk of judicial overreach and consequent legitimacy crisis, as the courts are said to encroach on terrain that is properly the preserve of the political branch of government.

It is by the same token important that the critics are …

External Forces, Internal Dynamics: Foreign Legal Actors And Their Impact On Domestic Affairs (Book Review), Jayanth K. Krishnan, Vitor M. Dias, Martin Hevia

Articles by Maurer Faculty

This Review examines the influence of foreign legal actors on jurisdictions that are not their own. Rachel Stern, a scholar of China, reflects on this point in her groundbreaking book published in 2013. In her penultimate chapter, Stern discusses how such foreign legal actors wield influence in China because of their presence on the ground. Building off of Stern's research, this Review proceeds to ask whether foreign legal actors can influence a domestic environment when that environment prohibits them from permanently working there. The analysis below will suggest so, arguing that the forces of globalization can enable foreign legal …

A World Elsewhere: Secession, Subsidiarity, And Self-Determination As European Values, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

Grappling At The Grassroots: Access To Justice In India's Lower Tier, Jayanth K. Krishnan, Shirish N. Kavadi, Azima Girach, Dhanaji Khupkar, Kilindi Kokal, Satyajeet Mazumdar, Nupar, Gayatri Panday, Aatreyee Sen, Aqseer Sodhi, Bharati Takale Shukla

Articles by Maurer Faculty

From 2010 to 2012, a team of academic and civil society researchers conducted extensive ethnographies of litigants, judges, lawyers, and courtroom personnel within multiple districts in three states: Maharashtra, Gujarat, and Himachal Pradesh. This Article provides an in-depth account of the everyday struggles these actors face in the pursuit of their respective objectives. The findings illustrate a complex matrix of variables-including infrastructure, staffing, judicial training and legal awareness, costs and continuances, gender and caste discrimination, power imbalances, intimidation and corruption, miscellaneous delays, and challenges with specialized forums-impact access to justice in the lower tier. The results of this study offer …

Book Review. The Undignified Part Of Constitutional Analysis, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

Systematic Government Access To Private-Sector Data Redux, Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

Misplaced Boldness: The Avoidance Of Substance In The International Court Of Justice's Kosovo Opinion, Timothy W. Waters

Articles by Maurer Faculty

The International Court of Justice's Kosovo Advisory Opinion is a masterpiece of avoidance. The Court has lived to run another day, and one can only admire the judges' skill in arriving at the vacant place between difficult and clashing conclusions of substance. Still, in the wake of the Opinion, questions inevitably arise: Of what use is this document? Has it advanced a project of justice, or of law? The Opinion has done something, though not, perhaps, what it purports to do. To understand it, we must engage this cautious, crimped document in its full context-or rather, we must understand the …

Pringle: Legal Reasoning, Text, Purpose And Teleology, Paul Craig

Articles by Maurer Faculty

The CJEU's judgment in Pringle saved the European Stability Mechanism from invalidity. The result was unsurprising, given that the contrary conclusion would have precipitated further crisis in the financial markets. The judgment is nonetheless highly interesting and not merely for those concerned with this aspect of EU law. This is because it contains much that is of more general relevance for the very nature of legal reasoning, and the blend of text, purpose and teleology that informs legal discourse. This article addresses two of the central claims made in the case.

The first was that the ESM was in reality …

Remedies For Foreign Investors Under U.S. Federal Securities Law, Hannah Buxbaum

Articles by Maurer Faculty

In its 2010 decision in Morrison v. National Australia Bank, the Supreme Court held that the general anti-fraud provision of U.S. securities law applies only to (a) transactions in securities listed on domestic exchanges and (b) domestic transactions in other securities. That decision forecloses the use of the “foreign-cubed” class action, and in general precludes the vast majority of claims that might otherwise have been brought in U.S. court by foreign investors. This article assesses the post-Morrison landscape, addressing the question of remedies in U.S. courts for investors defrauded in foreign transactions. It begins by reviewing the current case law, …

Ethnicity, Elections, And Reform In Burma, David C. Williams

Articles by Maurer Faculty

No abstract provided.

A Kind Of Judgment: Searching For Judicial Narratives After Death, Timothy W. Waters

Articles by Maurer Faculty

Much of international criminal law's attraction rests on the 'authoritative narrative theory '--the claim that legal judgment creates incontestable narratives that serve as the foundation, or at least a baseline, for post-conflict reconciliation. So what happens when there is no judgment? This is the situation that confronted the International Criminal Tribunal for the Former Yugoslavia when its most prominent defendant, Slobodan Milosevic, died. By turning scholarship's attention towards a terminated trial, this Article develops an indirect but powerful challenge to one of the dominant views about what international criminal law is for, with interdisciplinary implications for human rights, international relations, …

Delay In Process, Denial Of Justice: The Jurisprudence And Empirics Of Speedy Trials In Comparative Perspective, Jayanth K. Krishnan, C. Raj Kumar

Articles by Maurer Faculty

Criminal law scholars regularly maintain that American prisons are overcrowded and that defendants in custody wait long periods of time before having their cases brought to trial. A similar refrain is made of the penal process in India – the world’s largest democracy, an ally of the United States, and a country with a judiciary that has drawn upon American criminal procedure law. In fact, the situation in India is thought to be much worse. Accounts of prisoners languishing behind bars for several years – and sometimes decades – awaiting their day in court are not uncommon. And many Indian …

Conference: Laïcité In Comparative Perspective, Elisabeth Zoller, Marc O. Degirolami, Nina Crimm, Javier Martínez-Torrón

Articles by Maurer Faculty

No abstract provided.

Cracks In The Firmament Of Burma's Military Government: From Unity Through Coercion To Buying Support, David C. Williams

Articles by Maurer Faculty

Despite holding recent elections, Burma’s military government does not intend to relinquish power; its new constitution guarantees the army the right to do whatever it wants. Democracy will therefore not come to Burma through legal, peaceful, incremental steps. Instead, democracy will come to Burma outside the legal process, because the basis for the regime’s power has changed, becoming markedly weaker. When it first seized power in 1961, the military was united and therefore able to rule through coercion alone. In the past several decades, by contrast, the generals have increasingly sought to purchase support by giving income and resource streams …

Comparative Law: Problems And Prospects, Elisabeth Zoller, George A. Bermann, Patrick Glenn, Kim Lane Scheppele, Amr Shalakany, David V, Snyder

Articles by Maurer Faculty

This is an edited transcript of the closing plenary session of the XVIIIth International Congress of Comparative Law. The session took place on Saturday, July 31, 2010, in Washington, D.C., at the conclusion of the week-long congress, which is held quadrennially by the International Academy of Comparative Law (Acadimie Internationale de Droit Compare). The remarks were given in a mix of French and English, but for ease of reading the transcript is almost entirely in English.

The Relative Bargaining Power Of Employers And Unions In The Global Information Age: A Comparative Analysis Of The United States And Japan, Kenneth G. Dau-Schmidt, Benjamin C. Ellis

Articles by Maurer Faculty

In this paper, we examine and compare the impact of American and Japanese labor law on the relative bargaining power of the labor and management within the context of the new global economy based on information technology. We begin by providing a simple economic definition of bargaining power and examining how it can be influenced by economic and legal factors. Next, we discuss the impact of new information technology and the global economy on the employment relationship and how this has decreased union bargaining power relative to management bargaining power. Finally, we compare various facets of American and Japanese labor …

The Public Control Of Corporate Power: Revisiting The 1909 U.S. Corporate Tax From A Comparative Perspective, Ajay K. Mehrotra

Articles by Maurer Faculty

The origins of U.S. corporate taxation are often associated with the 1909 corporate excise tax. Scholars who have investigated the beginnings of this levy have mainly focused on the legislative history of the 1909 corporate tax to argue that it was either an expression of the Progressive Era impulse to regulate large-scale corporations or an attempt to use corporations as remittance devices to collect taxes aimed at wealthy shareholders. This Article broadens the conventional historical accounts of the emergence of American corporate taxation by revisiting the 1909 U.S. corporate tax from a comparative perspective. The aim is to look both …

A Constitution Without Constitutionalism: Reflections On Iraq's Failed Constitutional Process, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

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 …

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 …