Law Commons^™

Judging Foreign States, Zachary D. Clopton

Cornell Law Faculty Publications

Famed foreign relations law principles, including the act of state doctrine, the public law taboo, and Zschernig’s foreign affairs preemption, rely on the notion that U.S. courts should not sit in judgment on foreign states. Judges in these cases, as well as scholars writing in the area, frequently suggest that U.S. courts should sit out of important disputes due to considerations of sovereign equality and international comity. Yet, in less attention-grabbing cases, U.S. courts routinely sit in judgment on foreign judgments, laws, legal systems, and interests, sometimes concluding that they do meet U.S. standards. The first goal of this project, …

Arbitration Without Law: Choice Of Law In Frand Disputes, Eli Greenbaum

Res Gestae

Recent arbitration between InterDigital and Huawei seems to demonstrate the purported advantages of arbitration as a means of dispute resolution. The warring parties subsumed their multiple suits across different jurisdictions and forums into a single binding arbitral process. By virtue of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”), the arbitral award would be enforceable across jurisdictions. But even an agreement to arbitrate requires agreement on certain basic matters. On the most fundamental level, it requires agreement on the substantive and procedural laws governing the dispute, as well as the situs—or location—of the …

Should We Presume State Protection?, James C. Hathaway, Audrey Macklin

Articles

Professors Hathaway and Macklin debate the legality of the “presumption of state protection” that the Supreme Court of Canada established as a matter of Canadian refugee law in the Ward decision. Professor Hathaway argues that this presumption should be rejected because it lacks a sound empirical basis and because it conflicts with the relatively low evidentiary threshold set by the Refugee Convention’s “well-founded fear” standard. Professor Macklin contends that the Ward presumption does not in and of itself impose an unduly onerous burden on claimants, and that much of the damage wrought by the presumption comes instead from misinterpretation and …

Whose Law Of Personal Jurisdiction? The Choice Of Law Problem In The Recognition Of Foreign Judgements, Tanya Monestier

Law Faculty Scholarship

It is black-letter law that in order to recognize and enforce a foreign judgment, the rendering court must have had personal jurisdiction over the defendant. While the principle is clear, it is an open question as to whose law governs the question of personal jurisdiction: that of the rendering court or that of the recognizing court. In other words, is the foreign court's jurisdiction over the defendant governed by foreign law (the law of F1), domestic law (the law of F2), or some combination thereof? While courts have taken a number of different approaches, it seems that many courts regard …

Non-Charitable Purpose Trusts: Past, Present, And Future, Richard C. Ausness

Law Faculty Scholarly Articles

This Article focuses on non-charitable purpose trusts and how they enable estate planners to better carry out their clients’ objectives. Specifically, it explores the history of non-charitable purpose trusts and summarizes the differences between private trusts, charitable trusts, and non-charitable purpose trusts. This Article also examines the treatment of non-charitable purpose trusts in England and the United States prior to the promulgation of the Restatement of Trusts in 1935. This Article surveys the recent adoption of non-charitable purpose trust provisions in the Uniform Trust Code and various Restatements and gives advice on drafting the trust instruments. Lastly, this Article concludes …

A Call For Strengthening The Role Of Comparative Legal Analysis In The United States, Irene Calboli

Faculty Scholarship

This Essay highlights the importance of comparative legal analysis with particular emphasis on the role that this methodology could play for intellectual property scholarship in the United States. In particular, this Essay suggests that U.S. scholars could consider turning with more frequency to comparative legal analysis as an additional methodology to use in their research. Yet, the objective of this Essay is not to suggest that U.S. scholars should engage in comparative legal analysis in lieu of other types of research methodologies. Instead, this Essay simply supports that comparative legal analysis could play a larger role compared to the one …

Multinational Firms And Tax Havens, Anna Gumpert, James R. Hines Jr., Monika Schnitzer

Articles

Multinational firms with operations in high-tax countries can benefit the most from reallocating taxable income to tax havens, though this is sufficiently difficult and costly that only 20.4% of German multinational firms have any tax haven affiliates. Among German manufacturing firms, a 1 percentage point higher foreign tax rate is associated with a 2.3% greater likelihood of owning a tax haven affiliate. This is consistent with tax avoidance incentives and contrasts with earlier evidence for U.S. firms. The relationship is less strong for firms in service industries, possibly reflecting the difficulty of reallocating taxable service income.

Sovereignty Considerations And Social Change In The Wake Of India's Recent Sodomy Cases, Deepa Das Acevedo

All Faculty Scholarship

American constitutional law scholars have long questioned whether courts can really drive social reform, and this position remains largely unchallenged even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India — spurred by developments in a special type of legal action developed in the late 1970s known as “public interest litigation,” or “PIL” — have only recently begun questioning the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged, and optimism that …

Big Questions Comparative Law, Anna Di Robilant

Faculty Scholarship

This essay reflects on Ran Hirschl’s book "Comparative Matters." Feeling that historical comparative law methodologies have been found wanting it looks to newer methods. For example, the critical approach to comparative law relies on comparison to expose the implicit biases and assumptions of the observer’s own system and to denounce the illusory and ideological nature of “legalism,” namely, the claim that law is both neutral and necessary. Comparative law and economics seeks to explain in precise terms the convergence of legal rules by using efficiency as a key metric. Comparative law and economics also gives a comparative twist to the …

Restitution Of Non-Gratuitously Conferred Benefit In Malaysia: A Case For Sowing The Unjust Enrichment Seed, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article draws on the common law of unjust enrichment to rationalize and develop the right to recover a non-gratuitously conferred benefit set out in section 71 of Malaysia’s Contracts Act 1950. This attempt at legal transplant and modern restatement is made in the hope of injecting principle and clarity into the antique section with the eventual goal of reviving it for practical and modern use.

Africa And The Rule Of Law, Makau Wa Mutua

Journal Articles

The rule of law is often seen as a panacea for ensuring a successful, fair and modern democracy which enables sustainable development. However, as Makau Mutua highlights, this is not the case. Using the example of African states, he describes how no African country has truly thrown off the shackles of colonial rule and emerged as a truly just nation state – even though many have the rule of law at the heart of their constitutions. This, he argues, is because the Western concept of the rule of law cannot be simply transplanted to Africa. The concept must be adapted …

Rubbing The Rabbit's Foot: Gallows Superstitions And Public Healthcare In England During The Eighteenth And Nineteenth Centuries, Roberta M. Harding

Law Faculty Scholarly Articles

Superstitions possess an ancient pedigree. With the passage of time thematic superstitions developed; for example, some solely addressed the public’s health care needs. In fact, as far back as the fifth century many English subjects believed magical spells and jewels had curative properties. Law was another context that generated a body of superstitions. Capital punishment was one area that generated many superstitions. In fact, so many that a specific category was established: gallows superstitions. With hanging as the primary method of execution in England for centuries, this group of superstitions became a relatively large one. By merging the health care …

Immigration And Disability In The United States And Canada, Mark Weber

College of Law Faculty

Disability arises from the dynamic between people’s physical and mental conditions andthe physical and attitudinal barriers in the environment. Applying this idea aboutdisability to United States and Canadian immigration law draws attention to barriers toentry and eventual citizenship for individuals who have disabilities. Historically, NorthAmerican law excluded many classes of immigrants, including those with intellectualdisabilities, mental illness, physical defects, and conditions likely to cause dependency.Though exclusions for individuals likely to draw excessive public resources and thosewith communicable diseases still exist in Canada and the United States, in recent yearsthe United States permitted legalization for severely disabled undocumented immigrantsalready in the …

Slides: Drought In The Murray Darling Basin: A 100 Year Perspective, Daniel Connell

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Daniel Connell, Australian National University

22 slides

Slides: Water Governance Innovation And Transnational Networks, Michele-Lee Moore

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Michele-Lee Moore, Assistant Professor, Department of Geography, University of Victoria; Water, Innovation, and Global Governance Lab

10 slides

Slides: The Colorado And Murray-Darling Panel Discussion, Brad Udall

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Brad Udall, Senior Scientist/Scholar, Colorado State University

12 slides

Slides: Dam Operations: Does A Changing World Call For Changing Plans?, Reed D. Benson

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Reed D. Benson, University of New Mexico School of Law

13 slides

Slides: Data Sharing And River Basin Modelling: From The Colorado To The Nile, Kevin Wheeler

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Kevin Wheeler, University of Oxford

29 slides

Slides: The Murray-Darling Basin, Tony Mcleod

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Tony McLeod, MDBA, Murray-Darling Basin Authority

5 slides

Slides: Water Allocation And Water Markets In Spain, Nuria Hernández-Mora

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Nuria Hernández Mora, Universidad de Sevilla, Spain

22 slides

Slides: Learning From Drought Crises In Federations: Principles, Indicators And Lessons Learned, Lucia De Stefano, Dustin Garrick, Daniel Connell

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenters:

Lucia De Stefano, Complutense Universidad de Madrid

Dustin Garrick, McMaster University/University of Oxford

Daniel Connell, Australia National University

27 slides

Slides: Politics Of Interstate Water Cooperation And Conflicts: The Case Of Krishna River, India, Srinivas Chokkakula

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Srinivas Chokkakula, Centre for Policy Research, New Delhi; Research Fellow, SOAS, University of London

16 slides

Slides: Water Management In Spain, Teodoro Estrela

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Teodoro Estrela, Júcar River Basin Authority, Spain

15 slides

Agenda: Coping With Water Scarcity In River Basins Worldwide: Lessons Learned From Shared Experiences, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Water scarcity is increasingly dominating headlines throughout the world. In the southwestern USA, the looming water shortages on the Colorado River system and the unprecedented drought in California are garnering the greatest attention. Similar stories of scarcity and crisis can be found across the globe, suggesting an opportunity for sharing lessons and innovations. For example, the Colorado River and Australia's Murray-Darling Basin likely can share many lessons, as both systems were over-allocated, feature multiple jurisdictions, face similar climatic risks and drought stresses, and struggle to balance human demands with environmental needs. In this conference we cast our net broadly, exploring …

Slides: Scarcity And Bc's Water Future - The Evolution Of Western Water Law?, Oliver M. Brandes

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Oliver M. Brandes, University of Victoria

28 slides

Slides: Murray-Darling Basin, Australia, Tony Mcleod

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Tony McLeod, MDBA, Murray-Darling Basin Authority

17 slides

Slides: Environmental Flows In The Era Of 'River Anthropology', Rebecca Tharme

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Rebecca Tharme, Riverfutures Ltd.

18 slides

Slides: The Construction Of Water Scarcity And Its Management: Some Insights From South Africa's Vaal System 'Problemshed', Mike Muller

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Mike Muller, School of Governance, University of Witwatersrand, Johannesburg, South Africa

31 slides

Slides: Indigenous Water Justice Symposium, Jason Robison

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Jason Robison, Assistant Professor of Law, University of Wyoming

11 slides

Slides: Environmental Flow Case Studies: Southern And Eastern Africa, Rebecca Tharme, Kelly Fouchy, Susan Graas, John Conallin, Michael Mcclain, Unesco-Ihe, Felister Mombo, Sokoine University Of Agriculture

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Rebecca Tharme, Riverfutures Ltd.

17 slides