Law Commons^™

The Truth About Haiti, Irwin P. Stotzky

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No abstract provided.

Digital Multi-Media And The Limits Of Privacy Law, Jacqueline D. Lipton

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While digital video and multi-media technologies are becoming increasingly prevalent, existing privacy laws tend to focus on text-based personal records. Individuals have little recourse when concerned about infringements of their privacy interests in audio, video, and multi-media files. Often people are simply unaware that video or audio records have been made. Even if they are aware of the existence of the records, they may be unaware of potential legal remedies, or unable to afford legal recourse. This paper concentrates on the ability of individuals to obtain legal redress for unauthorized use of audio, video and multi-media content that infringes their …

Reply: The Complexity Of Commons, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

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Constructing Commons in the Cultural Environment, and responses to that article by Professors Thráinn Eggertsson, Wendy Gordon, Gregg Macey, Robert Merges, Elinor Ostrom, and Lawrence Solum. This short Reply comments briefly on each of those responses.

The Basic Law At 60 - Introduction To The Special Issue, Susanne Baer, Christian Boulanger, Alexander Klose, Rosemarie Will

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For Germany 2009 was a year of constitutional anniversaries: the first democratic constitution (Paulskirchenverfassung of 1849) was promulgated 160 years ago; the 1919 Weimar Constitution would have turned 90; and finally, the country celebrated 60 years of the Basic Law, which was proclaimed and signed in Bonn on 23 May 1949. Despite its birth in the midst of economic and political turmoil and widespread disillusion with politics, the Basic Law has come to be regarded as a "success story." As is well known, it was never meant to last - the very term "Grundgesetz" (basic law) indicated that it was …

Populist Retribution And International Competition In Financial Services Regulation, Adam C. Pritchard

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The pattern of regulatory reform in financial services regulation follows a predictable pattern in democratic states. A hyperactive market generates a bubble, the bubble deflates, and much financial pain ensues for those individuals who bought at the top of the market. The financial mess brings the scrutiny of politicians, who vow "Never again!" A political battle ensues, with representatives of the financial services industry fighting a rearguard action to preserve its prerogatives amidst cries for the bankers' scalps. Regulations, carefully crafted to win the last war, are promulgated. Memories fade of the foolish enthusiasm that fed the last bubble. Slowly, …

Comparative Tax Law: Theory And Practice, Reuven S. Avi-Yonah, Guy Inbar, Omri Marian, Linneu Mello

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On 3 October 2009, a Conference on Comparative Tax Law in Theory and Practice took place at the University of Michigan Law School. It was organized by Reuven Avi-Yonah (Professor, University of Michigan Law School) and Mathias Reimann (Editor, American Journal of Comparative Law and Professor, University of Michigan Law School), and was attended by Hugh Ault (Professor of Law, Boston College Law School), Victor Thuronyi (Senior Counsel, International Monetary Fund), Brian Arnold (Professor Emeritus, University of Western Ontario), William Barker (Professor, The Dickinson School of Law, Penn State), Michael Livingston (Professor, Rutgers School of Law-Camden), Carlo Garbarino (Professor of …

Constitutional Concepts For The Rule Of Law: A Vision For The Post-Monarchy Judiciary In Nepal, David Pimentel

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A new government has taken power in Nepal. Intent on replacing the monarchical Hindu state with a secular democracy, it has promised a new constitution. Although the Nepali government is currently operating under an Interim Constitution, it remains to be seen what the post-monarchy judiciary will look like. Those involved in the drafting should pay careful attention to how specific provisions for court governance will impact both institutional and decisional judicial independence. The Interim Constitution calls for a judicial council but not a sufficiently independent one. The Interim Constitution also allows broad exercise of emergency powers, depriving the courts of …

Decentralizing Family: An Inclusive Proposal For Individual Tax Filing In The United States, Anthony C. Infanti

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The debate in the United States over individual versus joint federal income tax filing is at something of a crossroads. For decades, progressive - and, particularly, feminist - scholars have urged us to abolish the joint return in favor of individual filing. On the rare occasion when scholars have described what such an individual filing system might look like, the focus has been on the ways in which the traditional family must be accommodated in an individual filing system. These descriptions generally do not take into account - let alone remedy - the tax system’s ongoing failure to address the …

Ornamental Repugnancy: Identitarian Islam And The Iraqi Constitution, Haider Ala Hamoudi

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Nearly six years after the enactment of Iraq’s final constitution, the Federal Supreme Court of Iraq has yet to render a single ruling respecting the conformity of any law to the “settled rulings of Islam” despite being empowered to do precisely that under Article 2 of the Iraqi Constitution. This so-called repugnancy clause is swiftly devolving from a matter that was of some importance during constitutional negotiations into one that is more symbolic than real – an assertion of identity, primarily of the Islamic variety (though when combined with Article 92, to some extent of the Shi’i Islamic variety) – …

Exporting Legal Education: Lessons Learned From Efforts In Transition Countries, Ronald A. Brand

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A convergence of inward and outward-looking processes in US law schools creates both risk and potential reward in the development of legal education. As law faculties engage in the current process of changing the traditional law school curriculum, they should carefully coordinate a desire for internal goals with an understanding of external impact, realizing that this process is likely to affect not just US law schools, but legal education across the globe. Changes in the curriculum at US law schools should be responsive, not only to concerns about the legal marketplace in the United States, but also to the impact …

Policymaking By The Japanese Judiciary In The Criminal Justice Field, Daniel H. Foote

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When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and …

Promoting Public Health Through Clinical Legal Education: Initiatives In South Africa, Thailand, And Ukraine, Tamar Ezer

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No abstract provided.

A Closer Look At Law: Human Rights As Multi-Level Sites Of Struggles Over Multi-Dimensional Equality, Susanne Baer

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In many societies, deep conflicts arise around religious matters, and around equality. Often, religious collectives demand the right to self-determination of issues considered - by them - to be their own, and these demands collide with individual rights to, again, religious freedom. These are thus conflicts of religion v. religion. Then, collective religious freedom tends to become an obligation for all those who are defined as belonging to the collective, which carries the problem that mostly elites define its meaning and they silence dissent. Usually, such obligations are also unequal relating to gender, with different regimes for women and for …

Transnational Class Actions And Interjurisdictional Preclusion, Rhonda Wasserman

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As global markets expand and trans-border disputes multiply, American courts are pressed to certify transnational class actions -- i.e., class actions brought on behalf of large numbers of foreign citizens or against foreign defendants. While the Supreme Court's recent decision in Morrison v. National Australia Bank Ltd. is likely to reduce the number of "foreign-cubed" or "f-cubed" securities fraud class actions filed in the United States (at least in the short term), it is unlikely to inhibit the filing of transnational class actions involving securities listed on domestic stock exchanges, transnational class actions raising claims that arise under federal laws …

Can Islamizing A Legal System Ever Help Promote Liberal Democracy: A View From Pakistan, Clark B. Lombardi

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Over the past twenty-five years, academics in Europe and the United States have written a great deal about the relationship between Islam and democracy, and between Islam and human rights. This scholarship often fails to acknowledge or take into account similar debates that occurred earlier during a period of decolonization. This article discusses the work of a Christian judge who served on the Supreme Court of Pakistan. This judge, A.R. Cornelius, was a famous Cambridge-educated legal liberal who courageously tried in the 1950s and 60s to protect human rights as Pakistan came under martial rule. Cornelius came to argue shockingly …

The Death Of Islamic Law, Haider Ala Hamoudi

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That lawmaking in many modern Muslim nation states appears to give rather short shrift to shari’a, seemingly ignoring it in all areas save the law of the family and replacing it elsewhere with European transplanted law, has been discussed. That the Muslim world is replete with political institutions and leaders that seek a greater role than this for the shari’a in the affairs of the state is obvious to anyone even faintly familiar with the region.

However, left undiscussed is the fact that the Islamist, who derives his authority precisely on the basis of returning sovereignty to God in all …

Identitarian Violence And Identitarian Politics: Elections And Governance In Iraq, Haider Ala Hamoudi

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This Essay, originally published in a 2010 issue of the Harvard International Law Journal (Online), maintains that it is a mistake to ask whether or not the United States was wise to have "allowed" elections in Iraq as early as it did following its overthrow of the Saddam Hussein regime in 2003. Such a question presumes an absence of domestic agency that was certainly not the case in Iraq, and is probably not the case in any modern society under occupation. Domestic demands coming from domestic forces seeking to shore up their own power base almost necessitated the outcome of …

Promoting The Rule Of Law: Cooperation And Competition In The Eu-Us Relationship, Ronald A. Brand

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Both the United States and the European Union fund programs designed to develop the rule of law in transition countries. Despite significant expenditures in this area, however, neither has developed either a clear definition of what is meant by the rule of law or a catalogue of programs that can result in coordination of rule of law efforts. This article is the result of a presentation at a May 2010 policy conference at the University of Pittsburgh School of Law, at which U.S. and EU government officials, scholars, and practitioners discussed the concept of rule of law and efforts to …

Rise Of Political Populism And The Trouble With The Legal Profession In China, Dongsheng Zang

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This essay looks into recent efforts by the ruling party in China to tighten control of the judiciary, the lawyers and prosecutors under the slogan of "harmonious society" in the last couple of years. This reversed the direction of judicial reform under the leadership of Xiao Yang, during his tenure as President of the Supreme People's Court before 2008. The trouble with the legal profession in China, the essay asserts, is not only that it loses its professional autonomy thus its ability to act as a sociopolitical force that is independent from the ruling political party; but also, by virtue …

Securities Class Actions Move North: A Doctrinal And Empirical Analysis Of Securities Class Actions In Canada, Adam C. Pritchard, Janis P. Sarra

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The article explores securities class actions involving Canadian issuers since the provinces added secondary market class action provisions to their securities legislation. It examines the development of civil liability provisions, and class proceedings legislation and their effect on one another. Through analyses of the substance and framework of the statutory provisions, the article presents an empirical and comparative examination of cases involving Canadian issuers in both Canada and the United States. In addition, it explores how both the availability and pricing of director and officer insurance have been affected by the potential for secondary market class action liability. The article …

The Basic Law At 60 - Equality And Difference: A Proposal For The Guest List To The Birthday Party, Susanne Baer

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The German constitution, named "Basic Law", has proven to work although many did not believe in it when it was framed. Others emphasize desiderata. Sabine Berghahn commented at the 50th birthday that it has developed "far too slowly and [some] has even gone completely wrong." ' Jutta Limbach, former President of the Federal Constitutional Court, observed that constitutional history was "anything but regal, but very difficult and full of obstacles. '' 2 Former Chancellor Willy Brandt famously called the constitution "a snail on thin ice." So what is missing when we analyze the Basic Law, and what should be finally …

Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, Nicholas C. Howson

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In late 2005 China adopted a largely rewritten Company Law that radically increased the role of courts. This study, based on a review of more than 1000 Company Law-related disputes reported between 1992 and 2008 and extensive interactions with PRC officials and sitting judges, evaluates how the Shanghai People's Court system has fared over 15 years in corporate law adjudication. Although the Shanghai People's Courts show generally increasing technical competence and even intimations of political independence, their path toward institutional autonomy is inconsistent. Through 2006, the Shanghai Court system demonstrated significantly increased autonomy. After 2006 and enactment of the new …