Law Commons^™

Taxation Of Spin-Off – U.S. And German Corporate Tax Law, Stefan W. Suchan

Cornell Law School J.D. Student Research Papers

Corporate law provides for a transaction commonly referred to as “spin-off”. The corporate enterprise is divided in (at least) two corporations. The stock of a controlled subsidiary will be distributed pro rata by a parent corporation to its shareholders which end up owning a brother/sister pair of corporate enterprises.

The Internal Revenue Code (IRC) in § 355 provides special rules for the distribution of stock and securities of a controlled corporation. The transaction is known as a “D reorganization”, if such a distribution follows the transfer by a corporation of all or a part of its assets to another corporation, …

Post-Enron: U.S. And German Corporate Governance, Stefan W. Suchan

Cornell Law School J.D. Student Research Papers

Only five years after Henry Hansmann and Reinier Kraakmann announced "the End of History of Corporate Law" – borrowing the words of Francis Fukuyama–, this observation seems at least questionable. Following two major failures of the “American Model” with the bankruptcy of Enron and WorldCom, the question of the "right" Corporate Governance regime is again under discussion.

Legislators around the globe assume that further development of Corporate Governance is necessary. There is consent for the need of improvement, but no clear answer on how to improve. A first step to solving the arising problems might be to evaluate the reasons …

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …

Are Your Click-Wrap Agreements Valid?—Internet Contracting In The Global Electronic Age: Comparative Perspectives For Taiwan, James Maxeiner

All Faculty Scholarship

Addresses the issue of standard terms in click-wrap and shrink-wrap licenses generally and in some detail how the laws of Taiwan, Germany, the European Union, the United States and Japan.

Stakeholder Protection In Germany And Japan, Mark J. Loewenstein

Publications

This Essay considers the stakeholder debate in the context of the German and Japanese legal systems. Although, nominally, corporations in those countries must operate in the interests of shareholders, in fact nonshareholder constituencies have considerable influence on corporate decision makers. Of equal importance, weak securities markets and ineffective or nonexistent legal protections for shareholders are also important factors in strengthening the position of nonshareholder constituencies and freeing directors to consider their interests. Thus, the stakeholder debate is more of an issue in the United States and Britain, where more shareholder-centic models flourish.

Legalize It? -Osp And Peer-To-Peer Network Liability For Online Music Copyright Infringements In The United States And Germany, Christian Nils Jochen Engelhardt

LLM Theses and Essays

It may be useful to explain why a comparative approach was chosen. It is easy and comfortable to get caught up in one's own legal system and not look abroad. It is often difficult enough to understand and apply one’s own laws accurately and the study of a foreign legal system may seem an effort too great. Yet, this reluctance to look beyond the familiar is fatal to legal development and improvement since entirely new ideas are rare in the field of law and the main source of change and new approaches is borrowing from another legal system. If one …

Comparison Between Freedom Of Religion In Germany And In The United States In General And The Treatment Of The Church Of Scientology Specifically, Wolfgang Eichele

LLM Theses and Essays

The thesis first gives background information about the general development of fundamental rights in both Germany and the United States and specifically the freedom of religion. The analysis discusses in particular freedom of religion granted by Article 4 of the Basic Law in Germany and the religious clauses of the First Amendment of the American Constitution. In the first conclusion, the differences in the interpretations of the religious clauses both in Germany and the United States will be stated. These differences will then be illustrated by a discussion on the Church of Scientology through its basic facts, history, ideas, and …

Continuing Payment Of One's Debt To Society: The German Model Of Felon Disenfranchisement As An Alternative, Nora V. Demleitner

Scholarly Articles

None available.

The Basic Law: A Fifty Year Assessment, Donald P. Kommers

Journal Articles

In 1949 the new German Basic Law raised many questions. Could a newly minted constitution-mere words on paper-breathe new life into a people devastated by war? Would it serve as a stable framework of government? Would it promote respect for human rights and popular government? Would it foster internal political unity? Half a century later all these questions can be answered in the affirmative. The Basic Law is one of the world’s most respected and imitated constitutions and it has emerged as the vital center of Germany's constitutional culture. It is invoked repeatedly in parliamentary debates and resorted to in …

Freedom Of Religion In Public Schools In Germany And In The United States, Inke Muehlhoff

LLM Theses and Essays

Unfortunately, in terms of religions, the strict neutrality is almost impossible to reach and most countries that have adopted such a principle still face religious conflicts. However, these conflicts have shifted from armed conflicts to legal conflicts and battles of words, which offer at least a more peaceful way to fight. One major battleground for these religious conflicts concerns the role of religion in the public school system. That battleground is the subject of this thesis. The discussion of how religion should be treated in the public school system will be based on a comparison between Germany and the United …

The Liability Of The Automobile And Motorcycle Manufacturers And Their Suppliers For Defective Products In The United States Compared To Germany, Daniel Karl Robyn

LLM Theses and Essays

This thesis deals with the lability of automobile and motorcycle manufacturers, as well as their suppliers, in situations where a defective product causes a harmful event. Specifically, it compares the product liability laws of the Federal Republic of Germany to those of the United States of America. Before entering into the details of legal doctrine, the introductory note provides background information on the social and economic aspects of automobile use in those two countries. Next, Chapter I describes the liability regime governing claims against German motor vehicle manufacturers and their suppliers. Chapter II focuses on the comparable law in the …

Abortion And Women's Legal Personhood In Germany: A Contribution To The Feminist Theory Of The State, D. A. Jeremy Telman

Law Faculty Publications

No abstract provided.

The American "Adversary System"?, William T. Pizzi

Publications

No abstract provided.

Kann Das Deutsche Verfassungsrechtsdenken Vorbild Fur Die Vereinigten Staaten Sein?, Donald P. Kommers

Journal Articles

Mein Thema läßt sich am besten als Frage formulieren: Was können wir Amerikaner von der Erfahrung der Deutschen mit dem Grundgesetz lernen? Diese Frage wurde für gewöhnlich in der anderen Richtung gestellt, näm lich: Was haben die Deutschen vom amerikanischen Verfassungsrecht ge lernt oder was sollten sie von ihm lernen?

Double Taxation - Treatment Of Corporate Earnings Under American And German Law, Roland Schmidt

LLM Theses and Essays

This thesis is going to describe the different ways the United States and Germany deal with the problem of double taxation in the legal context of corporate distributions to its shareholders in the form of dividends. Tax law is particularly one of the areas of laws that are subject to frequent and often substantial changes. This is true for the German as well as for the U.S. tax laws. Since some of the issues being discussed in the United States today in connection with the corporate tax law are similar if not identical to the issues discussed in Germany before …

Punishment And Procedure: A Different View Of The American Criminal Justice System, William T. Pizzi

Publications

No abstract provided.

International Arbitration And Procedures To Enforce Awards In The Relationship Between The United States And Germany, Michael Kronenburg

LLM Theses and Essays

Arbitration has long been regarded as a process that combines finality of decision with speed, low expense, and flexibility in solving problems. For these reasons, arbitration is often favored over litigation for dispute resolution. Particularly in international cases, a businessman may avoid litigation in a foreign country for various reasons: he may be unfamiliar with the proceedings; he may be afraid to find a “forum hostile” because of the different legal and cultural background of the judges; and he may wish to avoid the uncertainty concerning the law arising from the contract. Arbitration proceedings have been held constitutional by the …

The Federal Constitutional Court In The German Political System, Donald P. Kommers

Journal Articles

The Federal Constitutional Court is a major policy-making institution in Germany's system of government. Within the space of four decades (1951- 1991), this tribunal has evolved into the most active and powerful constitutional court in Europe. Its pivotal character in the German political system sterns from its role as a judicial lawmaking body created for the specific purpose of deciding constitutional disputes under the Basic Law.1 In deciding such disputes-that is, in interpreting the language and spirit of the Basic Law-the Constitutional Court has influenced the shape of Germany's political landscape, reaching deep into the heart of the existing state, …

The Constitutional Law Of Abortion In Germany: Should Americans Pay Attention?, Donald P. Kommers

Journal Articles

What I plan to do here is to tell you the story of Germany's legal approach to abortion and offer some tentative conclusions about what we Americans might learn from the German experience. My story centers mainly on the constitutionality of efforts in Germany to remove legal restrictions on abortion. In the United States, the story has a different twist, for there it centers on the constitutionality of efforts to impose legal restrictions on abortion. Both stories are fascinating accounts of constitutional decisionmaking, revealing as much about the values of the two societies as about the role of judicial review …

Understanding Prosecutorial Discretion In The United States: The Limits Of Comparative Criminal Procedure As An Instrument Of Reform, William T. Pizzi

Publications

No abstract provided.

Making America Competitive, Mark J. Loewenstein

Publications

No abstract provided.

German Constitutionalism: A Prolegomenon, Donald P. Kommers

Journal Articles

This essay sets out to describe the main features of German constitutionalism, and it concludes by drawing some comparisons with the United States. The term "constitutionalism," however, suffers from the vice of vagueness. As Gerhard Casper has written, "it is neither clearly prescriptive nor clearly descriptive; its contours are difficult to discern; its historical roots are diverse and uncertain." Any attempt to explore the contours and roots of German constitutionalism in the global sense suggested by Casper's comment would be a major undertaking extending far beyond the limits of this study. As used here the term shall be limited to …

Forum Shopping In Products Liability Actions: A Comparison Between The United States, France And Germany, Lothar W. Baum

LLM Theses and Essays

The goal of this research is to state the current situation concerning products liability in the United States, the Federal Republic of Germany and more briefly, France and to compare the different systems. Emphasis will be given to the substantive laws, in particular to the new EC Directive and its adoption in the Federal Republic of Germany. Also, it will discuss the current German law, since this will be valid for all claims initiated before the enactment of the new ProdHaftG. Further, based on the previous analysis, it will be shown where a consumer is in the most favorable position …

Per Se Legality Of Vertical Restraints: Contested In America -- Not Debated In Germany: Search For Reasons And Comparison, Rainer F. Hildebrandt

LLM Theses and Essays

The approach towards vertical restraints depends heavily on the outcome of the "battle for the soul of antitrust". Therefore, to make the implications of the dispute more comprehensible, this study necessarily has to prefer to the basics of antitrust policy such as legislative history and political underpinnings. The second chapter addresses the underlying values of American and German antitrust laws and compares the concepts chosen to protect these values. Based on these foundations, chapter three evaluates resale price maintenance. In chapter four, the Supreme Court's judgment in Business Electronics Corp. v. Sharp Electronics Corp. is analyzed according to the GWB …

The American Advantage: The Value Of Inefficient Litigation, Samuel R. Gross

Articles

In a recent article, The German Advantage in Civil Procedure,1 Professor John Langbein claims that the German system of civil litigation is superior to the American; in an earlier article he makes a parallel claim about German criminal procedure.2 Roughly, Professor Langbein argues that by comparison to the German process, American litigation is overly complex, expensive, slow, and unpredictable - in short, inefficient.3 Professor Langbein is not the first and will not be the last to criticize American legal institutions in these terms, but he expresses this criticism particularly well: he is concise and concrete, he describes American practice by …

New Constitutional And Penal Theory In Spanish Abortion Law, Richard Stith

Law Faculty Publications

No abstract provided.

Foreword, Donald P. Kommers

Journal Articles

Professor Zeidler's article appears in the sixty-second volume of the Notre Dame Law Review, in English, for the first time. It is the most comprehensive and up-to-date treatment of the Federal Constitutional Court's decisional procedures to appear so far in an American law review. It should interest students of comparative constitutional law as well as American scholars alarmed by the United States Supreme Court's claims to finality or exclusivity in constitutional interpretation. By the use of certain decisional modes described by President Zeidler, the German Court provides the legislature with considerable leeway in meeting its constitutional obligations. In doing …

Planning Under The National Environmental Policy Act: The Use Of Environmental Impact Statements In Agency Decisionmaking, Ralf Marxen

LLM Theses and Essays

This article focuses on Environmental Impact Statements (EIS) as part of the Federal National Environmental Policy Act and will therefore not deal with the different State Environmental Policy Acts (SEPA) or their relation to and interaction with Federal legislation. Furthermore, this article will focus upon those issues that are of special relevancy to the possible adoption of EISs into the German legal system. The article will also address cost-benefit issues related to the EIS process. Part VIII (judicial review) will only concentrate on the judicial review of administrative action concerning environmental planning through EISs.

A House Of Lords' Judgment, And Other Tales Of The Absurd, Alan Watson

Scholarly Works

In this paper I want to look at four approaches to deciding a case in different societies-contemporary England, uncodified civil or 'mixed' law systems (with an example from 17th century Scot-land and another from early 20th century South Africa), 19th century France after codification, 15th century Germany with a glance at 13th and 14th century Spain-where the attempt is made each time to reach the correct decision by applying the mental process thought most appropriate. None of the approaches examined here is result-oriented, and to outsiders, especially to lawyers brought up in a different legal culture, the mental process seems …

Politics And Jurisprudence In West Germany: State Financing Of Political Parties, Donald P. Kommers

Journal Articles

The relationship between political parties and representative government has been an important consideration in the constitutional jurisprudence of the Federal Republic of Germany. The Federal Constitutional Court has gone further than any other constitutional tribunal in the West to promote a free and competitive party system, and the Court’s decisions affecting the status of parties under the Basic Law, especially those having to do with party finance, are a marvelous illustration of the interplay between politics and law. The Federal Constitutional Court’s decision in 1966 to invalidate a federal plan for subsidizing political parties is a good example of the …