Law Commons^™

The Aftermath Of Abusive Adoption Practices In The Lives Of Adoption Triad Members: Responding To Adoption Triad Members Victimized By Abusive Adoption Practices, David M. Smolin, Desiree L. Smolin

David M. Smolin

The above-titled presentation was given as a plenary presentation at the Annual Symposium of the Joint Council on International Children’s Services (JCICS) on April 18, 2012. Herein is a slightly modified version of the Power Point used at the presentation. We corrected some typos and made some editorial adjustments, but this is 99% the same as what was used at the presentation. Unfortunately the event itself was not taped.

It is important to note that the original context for this presentation is Intercountry Adoption to the United States. However, some of you may find some of these points relevant to …

Lack Of Judicial Independence And Its Impact On Transnational And International Litigation, Omar E. Garcia-Bolivar

Omar E Garcia-Bolivar

This article is about the impact of lack of judicial independence in different areas of transnational and international litigation, such as enforcement of foreign judgement and investment disputes.

Ezra Bronstein: In Defense Of The “Better Bailout,” A Heter-Iska Comparison, Ezra Bronstein

Ezra Bronstein

No abstract provided.

Equality Qua Equality: A Comparative Critique Of The Tiers Of U.S. Equal Protection Doctrine, Lorenzo Di Silvio

Lorenzo Di Silvio

On February 23, 2011, the Obama Administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act. Of great significance in this announcement was the Administration’s position that classifications on the basis of sexual orientation warrant heightened judicial scrutiny. Notwithstanding this announcement, the level of review applied to sexual-orientation classifications—and the manner in which a court determines whether a particular type of classification deserves more searching review—is an open question, the answer to which typically dictates the outcome of challenges to government classifications. Apart from this outcome determinativeness, affording heightened scrutiny to some classifications but …

The Effect Of Military Conquest On Private Ownership: Jewish And Islamic Law, Amal Mohamad Jabareen, Israel Zvi Gilat

Amal Mohamad Jabareen

This article presents the legal outlooks of two fundamental religious judicial systems – Jewish (Halakha) and Muslim (Shari'a) – on the effect of war on private ownership. To be precise, this is when the conquered inhabitants are Jews or Muslims and halakhah or shari’a are their religion, respectively, but the conqueror is a non-believer or secular sovereign. Such situations evoke the following questions: To what extent the transfer of ownership by the conquering sovereign is recognized by the religious laws of the conquered population? May a member of the conquered religion acquire property that was seized by the non-believer sovereign …

Comparing Legal Argument, Jacco Bomhoff

Jacco Bomhoff

Extracts from a contribution setting out a methodological framework for the comparison of different forms of legal argument across different legal systems.

The full text of this chapter can be found in Adams & Bomhoff, Practice and Theory in Comparative Law (Cambridge University Press, 2012)

Государственная Власть И Местное Самоуправление В Израиле, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

In the article features of the government and local self-government in Israel are considered. The urgency of their studying is caused by that in this country there is no Constitution in the form of the consolidated act that pulls together it with English State-legal tradition. The democratic political mode has affirmed as Israel, elections in authorities were never cancelled. The parliamentary form of government has predetermined legal status and the competence of the President of the State, the Knesset and the Government. The local self-government system promotes the statement of democratic principles of the Israeli society

Политические Процессы В Регионе Ближнего И Среднего Востока, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Studying of political processes in the countries of the Middle East represents considerable interest because the given region is near to southern borders of Russia, other Post-Soviet countries and should mention their political, economic and humanitarian interests. In a number of the region countries there are astable political modes (Iraq, Afghanistan, etc.), their constitutional development is braked and is affected by system of the international sanctions (the United Nations, the European Union) or State Law of the leading states of the West. On political development of some the countries (Islamic Republic Iran, the Lebanese Republic, Algeria, etc.) essential if not …

The Case For A Global Treaty On Soil Conservation, Sustainable Farming, And The Preservation Of Agrarian Culture, Nicholas A. Fromherz

Nicholas A Fromherz

Soil is the foundation of life, yet we have all but ignored it in conservation efforts and legal reforms. Right under our noses, we are losing topsoil at rates that far outpace nature’s ability to keep up. Erosion, salinization, desertification, nutrient depletion, contamination—these and other threats have conspired to take away the land that feeds us. But they have done so largely at our own command. Like most environmental crises, human decisions have played a critical role in the degradation of Earth’s soils. To remedy this situation—or at least get the ball moving in that direction—I argue that we need …

Regulation Not Prohibition: The Comparative Case Against The Insurable Interest Doctrine, Sharo Michael Atmeh

Sharo M Atmeh

American law requires an insurable interest—a pecuniary or affective stake in the subject of an insurance policy—as a predi-cate to properly obtaining insurance. In theory, the rule prevents both wagering on individual lives and moral hazard. In practice, the doctrine is avoided by complex insurance transaction structuring to effectuate both origination and transfers of insurance by individuals without an insurable interest. This paper argues that it is time to ab-andon the insurable interest doctrine. As both the English and Aus-tralian experiences indicate, elimination of the insurable interest doctrine will have little detrimental pecuniary effect on the insurance industry, while freeing …

Courts And New Democracies: Recent Works, Tom Ginsburg

Tom Ginsburg

Recent literature on comparative judicial politics reveals a variety of roles that courts adopt in the process of democratization. These include, very rarely, serving as a trigger for democratization and, more commonly, serving as downstream guarantor for departing autocrats or as downstream consolidator of democracy. In light of these roles, this article reviews six relatively recent books: Courts in Latin America, edited by Helmke and Rios-Figueroa (2011); Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile, by Hilbink (2007); Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Couso, Huneeus, and Sieder (2011); The Legacies of …

Diapositives Versus Movies – The Inner Dynamics Of The Law And Its Comparative Account, Mauro Bussani, Ugo Mattei

Mauro Bussani

The paper is the introduction to the Cambridge Companion to Comparative Law. The book (as well as its introduction) goes through the variety of possible nuances of comparative law. Acknowledging that diverse working comparative methods can all be useful tools to the understanding of the legal phenomena, this preface sets up two provisos. One is that any method one relies on should enable the researcher to stay close to what the law is, to how the law lives in the different settings – regardless of what one would like (i.e. regardless of what any kind of personal and cultural bias …

Of Orphans And Adoption, Parents And The Poor, Exploitation And Rescue: A Scriptural And Theological Critique Of The Evangelical Christian Adoption And Orphan Care Movement, David M. Smolin

David M. Smolin

The primary purpose of this essay is to demonstrate that the scriptural and theological analysis undergirding the evangelical adoption and orphan care movement is patently and seriously erroneous. Thus, this essay will demonstrate that, based on the standards, methods, and presuppositions broadly shared by evangelical Christians in analyzing scripture and theology, the evangelical adoption movement’s specific analysis of concepts such as “adoption” and “orphans” has been seriously deficient and has produced conclusions that are demonstrably false. The second purpose of this essay will be to indicate that these errors of scriptural and theological analysis have produced, and are producing, practices …

The Education Of Special Needs Children In Uganda: Lessons From The American Legal Environment, David Brian Dennison

David Brian Dennison

This article is a comparative treatment of special education law and policy in Uganda and the United States. The purpose of the article provide additional perspective for those seeking to promote and champion the rights of special needs students in Uganda.

A Call For Stricter Appellate Review Of Decisions On Forum Non Conveniens, Nicholas A. Fromherz

Nicholas A Fromherz

Forum non conveniens has been criticized as anachronistic and unfair. Critics say that it amounts to little more than economic protectionism, serving as a pretext for the dismissal of suits brought against domestic corporate defendants. Even if one does not view the doctrine as inherently flawed, it is undeniable that its application has been extremely uneven owing to the broad discretion exercised by district courts ruling on the issue. Troubling in any circumstances, the misapplication of forum non conveniens is all the more so because of the high stakes pertaining to the matter. When a case is dismissed on forum …

A Balancing Act? The Rights Of Donor-Conceived Children To Know Their Origins, Brigitte J. Clark Dr

Brigitte J Clark Dr

Abstract Internationally, donor-conceived children’s rights to know their biological origins have been recognised to some extent by the jurisprudence of the European Court of Human Rights (ECHR). With the drafting of the Article 7 (1) of the United Nations Convention on the Rights of the Child (UNCRC), as supplemented by Article 8, such children’s rights to know their biological origins whist they are children, and not only later as adults, were acknowledged for the first time, though not explicitly. Anonymous sperm donation is now banned in eleven jurisdictions, including Sweden and England and Wales. By contrast, France still does not …

Smoked Success? Social, Cultural, And Legal Changes In The United States, Japan, And France Have Led To A Decline In Tobacco Use. Yet, Teenagers Refuse To Budge!, Dalila V. Hoover

Dalila V Hoover

Once considered a part of everyday life, tobacco consumption has become a global public health crisis that has transcended national borders. By the end of 2011, tobacco will have killed nearly six million people, including more than 600,000 of people exposed to tobacco smoke. If current smoking patterns continue, the toll will nearly double by 2030 with more than 8 million deaths. To safeguard the public’s health, the United States, Japan, and France have taken action to change the acceptability of smoking. Although they have adopted a different approach, they have successfully altered and redefined their cultural perception of tobacco …

Alliance Compliance: The Divergence In Us–Eu Airline Alliance Review Policies, Peter J. White Jd

Peter J White

Throughout the late twentieth century and into recent years, the airline industry has been characterized by a vast increase in global airline alliances. However, due to strict ownership restrictions, air carriers cannot take advantage of international mergers or takeovers. As a result, many air carriers enter into alliances with other air carriers in order to create an extensive international network, allowing them to benefit from economies of scope and density. An alliance also may allow an air carrier to operate more efficiently by eliminating duplication of costs, thereby allowing the air carrier to perform a better service for its customers. …

What's Wrong With Forum Shopping? An Attempt To Identify And Assess The Real Issues Of A Controversial Practice, Markus A. Petsche

markus a petsche

In this article, I revisit the question posed by Professors Juenger and Maloy in earlier contributions: what is wrong with (international) forum shopping? Despite doctrinal efforts to determine the origins and effects of forum shopping, the desirability of this practice remains a highly controversial topic. In this article, I show that the adverse impact of forum shopping is limited and that existing policies addressing forum shopping (including the doctrine of forum non conveniens) should thus be reevaluated in light of this finding. First, I identify the criteria by which the potentially detrimental impact of forum shopping (or rather forum selection) …

A Critique Of The Doctrine Of Forum Non Conveniens, Markus A. Petsche

markus a petsche

In this article, I formulate a basic critique of the doctrine of forum non conveniens. Unlike other authors, I do not focus on the numerous problems posed by the actual application of this doctrine in practice (e.g. delaying effect on proceedings, incoherent decisions, and discrimination against foreign plaintiffs). Instead, I explore the validity of the theory of forum non conveniens, i.e. the question of whether forum non conveniens – if applied in the best possible manner – can at all be a useful legal rule. My starting point is the observation that, despite the prevalence of contrary views, forum non …

What Should Guide Determinations Of Foreign Official Immunity In Us Courts After Samantar?, Chris C. Morley

Chris C Morley

In the recent Samantar decision, the Supreme Court held that individual foreign officials were not covered by the Foreign Sovereign Immunities Act but might still be covered by common law immunity. This article analyzes the extent of that common law immunity and discusses whether more recent developments in domestic and international human rights law should impact the availability of immunity for officials accused of torture, extra-judicial killings, and other violations of the law of nations.

Although the bulk of authority from US and foreign courts suggests that foreign officials should enjoy immunity for acts committed within the scope of their …

Fitness Tax Credits: Costs, Benefits, And Viability, Daniel Reach

Daniel Reach

As the number of overweight and obese Americans rises, it becomes increasingly clear that Americans need further incentives to stimulate lasting lifestyle changes. Tax incentives focused on exercise, which have been largely unexplored to this point, are an effective response to the growing obesity problem in the United States that would largely avoid the special-interest opposition that tax policies focused on diet have encountered. In addition, they would also provide a more palatable solution for the taxpayer beneficiaries with a relatively low impact on government revenues. Viable tax incentives to encourage greater fitness include tax credits and sales tax breaks, …

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Robin (Hui) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

Development Lending To Municipalities By The World Bank Group, Asheesh Bhalla

Asheesh Bhalla

The World Bank Group has recently shifted its development lending policies to have a greater focus on lending to municipalities and developing financial institutions and systems of market creation at the local level. The author reviews this policy shift, and the consequences of such policy changes on local government institutions and law.

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

Governing China’S Financial Disputes In The Aftermath Of The Global Financial Crisis Of 2008, Shahla F. Ali, Robin (Hui) Huang

Shahla F. Ali

In light of the recent global financial crisis of 2008, this article critically compares how China’s national arbitration commissions and local courts are responding to new challenges brought about by an increase in the number of banking related disputes. Drawing on comparative case analysis, the article examines the operation of CIETAC and the Shanghai Courts financial dispute resolution mechanisms in resolving financial disputes. Drawing on insights from selected case findings, the article provides insight into which institution is in the best position to handle financial-related cases, discusses prospects for coordination between the two and sets out proposals for further reform. …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …

The Protection Of Digital Information And Prevention Of Its Unauthorized Access And Use In Criminal Law, Carrie Leonetti, Moonho Song

Carrie Leonetti

There are a number of valuable intangible properties that do not have specific legislation devoted to their criminal regulation and protection, which poses a vexing problem for the world’s legal systems, which have had an unsatisfactory track record in protecting valuable information over the course of the previous century, giving rise to the need for laws that specifically address issues related to the protection of the integrity of digital information-storage systems. This Article focuses on the protection of these intangibles, when they are stored within a computer system, from their unauthorized use by, or interference from, third parties.

The Article …