Law Commons^™

Chevron Abroad, Kent H. Barnett, Lindsey Vinson

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This Article presents our comparative findings of how courts in five other countries review agency statutory interpretation. These comparisons permit us to understand and participate better in current debates about the increasingly controversial Chevron doctrine in American law, whereby courts defer to reasonable agency interpretations of statutes that an agency administers. Those debates concern, among other things, Chevron 's purported inevitability, functioning and normative propriety. Our inquiry into judicial review in Germany, Italy, the United Kingdom, Canada, and Australia provides useful and unexpected findings. Chevron, contrary to some scholars' views, is not inevitable because only one of these countries has …

Made In Taiwan: Alternative Global Models For Marriage Equality, Stewart Chang

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This Article comparatively analyzes the judicial decisions that led to same-sex marriage equality in Taiwan, South Africa, and the United States. After first evaluating the structural mechanisms that led Taiwan to become the first Asian nation to legalize same-sex marriage through Interpretation No. 748 of the Taiwan Constitutional Court, this Article then draws comparisons to how marriage equality was similarly affected through a delayed imposition of the court order in South Africa to allow the legislature an opportunity to rectify the law in Minister of Home Affairs v. Fourie, and finally considers how these approaches provide equally viable and more …

The Constitution As Poetry, Samuel J. Levine

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Building upon a body of scholarship that compares constitutional interpretation to biblical and literary interpretation, and relying on an insight from a prominent nineteenth century rabbinic scholar, this Article briefly explores similarities in the interpretation of the Torah—the text of the Five Books of Moses—and the United States Constitution. Specifically, this Article draws upon Rabbi Naftali Zvi Yehudah Berlin’s (“Netziv”) intriguing suggestion that the interpretation of the text of the Torah parallels the interpretation of poetry. According to Netziv, this parallel accounts for the practice of interpreting the Torah expansively in ways that derive substantive legal rules and principles far …

Gender, Law, And Culture In The Legal Workplace: A Chilean Case Study, Ann C. Mcginley

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"What has to change is the model of work. It can't be that in order to be a partner in a law firm, a woman has to learn to renounce her children. It is the men who have to renounce this work model and take equal responsibility for their children. It is very difficult for a society to do this. "

How do law and culture affect the behavior of actors on the ground? If culture and law interact, how does this interaction occur? This Article examines how gender and law affect lawyers working in a Latin American country Chile …

The Hipaa Privacy Rule And The Eu Gdpr: Illustrative Comparisons, Stacey A. Tovino

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In this Article, Professor Tovino compares and contrasts three illustrative concepts and rights in the Privacy Rule and/or the GDPR, including the concepts of authorization and consent, the rights of amendment and rectification, and the right to erasure. Identified similarities reflect the core values of HHS and the EU with respect to maintaining the confidentiality and privacy of personal data and protected health information, respectively. Identified differences reflect the Privacy Rule's original, narrow focus on health industry participants and individually identifiable health information compared to the GDPR's broad focus on data controllers and personal data. Other differences reflect, perhaps, the …

Judicial Federalism In The European Union, Michael Wells

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This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples of …

Gay Liberation In The Illiberal State, Stewart Chang

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A comparative analysis of incrementalist approaches to gay rights as they are deployed in the United States and Singapore demonstrates that seeking gay rights in a full democracy is actually no better than seeking them in an authoritarian regime. Incrementalism ultimately promotes sexual nornativity by dividing the gay community into "good gays," who deserve equal protections, and "bad queers," who are further marginalized. Incrementalism in the United States began with decriminalization of sodomy and terminated with the recognition of gay imarriage but did so by imagining gay sexuality within the context of committed relationships. The gay rights movement in Singapore …

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

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The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …

Neoliberalism And The Good Daddies And Bad Daddies Of Academic Freedom, Stewart Chang

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In this micro symposium article, Professor Stewart Chang joins his colleagues in addressing the questions posed by Stanley Fish, in his article, "Versions of Academic Freedom: From Professionalism to Revolution." Professor Chang specifically seeks to answer "What is the relationship between academic freedom and democracy?" as applied to Singapore.

The Postcolonial Problem For Global Gay Rights, Stewart Chang

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As the United States and Europe have progressed to the issue of same-sex marriage, countries that are still working through antecedent issues, such as the decriminalization of anti-sodomy laws, are regarded by international gay rights advocates as lagging behind the times. This often leads to pressures from the Western-dominated international community for reform. Through this Article, Professor Stewart Chang contributes to the ongoing scholarly debate between international human rights activists who desire to advance gay rights by utilizing the same rights-based models that prevail in the United States and Europe and critics of this approach who deem the universal imposition …

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

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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 Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf

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U.S. asylum law is based on a domestic statute that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum provisions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. This Article highlights this significant omission and urges courts to examine the interpretations of other States Parties to the Protocol in asylum cases. Using as an example the current debate over social …

Law, Language, Crime, And Culture: The Value And Risks Of Comparative Law, Christopher L. Blakesley

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Words, language, culture, and literature are so important to us human beings that it should come as little surprise that they are part of our law. This article considers language and law in general with a focus on issues of criminal justice, both domestic and international. I examine how and why comparative law is valuable in a criminal procedure course, and generally for domestic and international criminal justice. My examination begins by looking back to our common roots in crime, punishment, and expiation, with a special focus on the role of torture and its impact on current criminal justice systems. …

Harmonization Of Procedure: Theory And Practice, Thomas O. Main

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Review of Kramer & Rhee, Civil Litigation in a Globalizing World (2012).

Deference Or Abdication: A Comparison Of The Supreme Courts Of Israel And The United States In Cases Involving Real Or Perceived Threats To National Security, Eileen Kaufman

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The Supreme Courts of Israel and the United States treat cases involving national security radically differently, or so it appears on the surface. The fact that the two courts make very different use of justiciability doctrines dramatically affects their willingness to decide “war on terrorism” cases that challenge aspects of national security programs as violative of individual rights. On the surface, the approaches of the two courts thus appear to be radically different, and indeed they are, at least with respect to their willingness to hear and decide cases in “real time” and in terms of their willingness to embrace …

Finding International Law, Part Ii: Our Fragmenting Legal Community, Harlan G. Cohen

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Is there an “International Community?” This Article suggests that there is not, that the oft-discussed fragmentation of international law reveals that there are in fact multiple overlapping and competing international law communities, each with differing views on law and legitimacy.

This Article reaches this conclusion by taking a fresh look not only at the sources of fragmentation, but at the sources of international law itself. Building on earlier work rethinking international law’s sources and drawing insights from legal philosophy, compliance theory, and international relations, this Article takes a closer look at three areas that have challenged traditional interpretations of international …

The Word Commons And Foreign Laws, Thomas O. Main

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Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their …

Penalty Clauses And The Cisg, Jack Graves

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Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause …

Global Procurement Law In Times Of Crisis: New Buy American Policies And Options In The Wto Legal System, John Linarelli

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This is a draft chapter, Sue Arrowsmith & Robert D. Anderson (eds.), The WTO Regime on Government Procurement: Challenge and Reform (Cambridge University Press, 2011). What should governments do to protect their citizens in a global economic crisis? National economies are interdependent and economic risk is systemic on a global scale, but economic policy remains pervasively national in scope. Fiscal policy has not been the subject of much in the way of collective action at the global level, and if it has, states accomplish it in ad hoc political (as opposed to legal) arrangements in response to particular crises. States …

The Limited Case For Permitting Sme Procurement Preferences In The Wto Agreement On Government Procurement, John Linarelli

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This is a chapter in the book, Sue Arrowsmith & Robert D. Anderson, The WTO Regime on Government Procurement: Challenge and Reform (Cambridge University Press, 2011). The chapter puts under scrutiny public procurement policies designed to benefit SMEs per se, as small or medium sized enterprises, and to evaluate whether the GPA (and hence possibly other trade agreements liberalizing procurement markets) should be more accommodating to these policies, even though these policies might restrict international trade. The chapter also evaluates whether the GPA should be more accommodating to policies designed to benefit firms controlled by individuals who belong to historically …

A Common Lawyer’S Perspective On The European Perspective On Punitive Damages, Michael Wells

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Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems. This paper argues that the main reasons for the difference are historical and cultural. Roman law and the French Revolution heavily influenced the civil law. Civilians were taught that legal development comes from the top down. They learned to treat law as a system of general principles and to resist anomalies. They found it relatively easy to reject the intrusion of criminal themes into private law. The common law developed one case at a time, with no particular emphasis on systematic coherence. It was …

Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine

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In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

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The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

Analytical Jurisprudence And The Concept Of Commercial Law, John Linarelli

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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 …

Repraesentatio In Classical Latin, Alan Watson

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The Romans knew well the twin concepts of representation and representatives in law suits and in the relationships between father and son, and owner and slave. But for these concepts they did not use the terms repraesentare or any cognate.

To Tertullian, it seems, goes the credit of first using repraesentare and repraesentator in their modern senses of <> and <>. That his context is theological probably should not surprise since he is, above all, a theologian.

Thus he uses repraesentare to mean that the one larger and more important may represent the many and less important. This usage had a …

Lord Mansfield; Judicial Integrity Or Its Lack; Somerset's Case, Alan Watson

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I write this after re-reading Steven M Wise's Though the Heavens May Fall. My argument, if convincing, undermines the basis of the book. Probably the most famous decision in English law is that of Lord Mansfield in Somerset v. Stewart in 1772. It is very short and very dramatic; indeed, it is so rhetorical that much of what is vital is overlooked -- as it was meant to be. Somerset was Stewart's slave in Virginia and was brought to England by his owner. Somerset travelled extensively in the service of his master, to Bristol and Edinburgh, for example. But two …

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

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No abstract provided.

Plea Bargaining At The Hague, Julian A. Cook

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Plea bargaining has come to The Hague. For most of its existence, the International Criminal Tribunal for the Former Yugoslavia (ICTY) shunned plea bargains. However, under pressure from United Nations member states and the impending deadline for the resolution of its caseload, the ICTY has increasingly relied on plea bargains in recent months. This Article exposes the deficiencies in guilty plea procedures at The Hague, particularly those designed to assess whether a plea is fully informed and voluntary. In a series of case studies, the Article argues that judicial questioning techniques have exploited the vulnerable state of defendants appearing before …

Report Regarding The Pacific Mcgeorge Workshop On Globalizing The Law School Curriculum, Thomas O. Main

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No abstract provided.

Fig Leaves, Fairytales, And Constitutional Foundations: Debating Judicial Review In Britain, Lori A. Ringhand

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This paper examines an ongoing debate about the origins and legitimacy of judicial review as practiced in Britain. I begin by examining how British law traditionally has attempted to justify judicial review of governmental actions. I then discuss how that orthodox view has been challenged, and how the proponents of the orthodoxy responded to that challenge. In doing so, I explain how the British debate has evolved into a far-reaching examination of the role of interpretive methodologies in legitimating judicial power. I conclude by exploring how the richness and depth of the British discussion can inform the larger debate about …