Law Commons^™

Legal Reform In Contemporary Japan, Eric Feldman

All Faculty Scholarship

In this chapter I offer a preliminary assessment of a quickly moving target—legal reform and its impact on rights in Japan. Although a broad consensus has emerged among interested parties that at least some degree of reform is desirable, there is significant disagreement about the goals of reform, and also about the likelihood that it will achieve certain objectives. Some commentators believe that the Japanese legal system is on the cusp of a “revolution” that will shore up long-neglected rights and create new entitlements. Others predict that the consequences of reform will be modest; and they despair that aggrieved individuals …

Comparativa Entre Les Reformes Dels Estatuts D'Autonomia De Catalunya I D'Andalusia [Comparative Analysis Of The Reforms Of The Charters Of Autonomy Of Catalonia And Andalucía], Albert Lamarca-Marquès, Vanessa Casado-Pérez

Faculty Scholarship

En els ordenaments jurídics continentals europeus no és habitual l’admissió d’escrits acadèmics independents adreçats als tribunals de justícia en el marc de procediments de gran importància. En els països del Common Law, especialment en les jurisdiccions nordamericanes, mitjançant el procediment anomenat d’Amicus Curiae es permet d’adreçar aquesta mena d’escrits als tribunals de justícia, que hauran de decidir si els tenen o no en compte. A través de les pàgines d’InDret, hem volgut oferir aquest document de comparació d’ambdós Estatuts per contribuir al debat jurídic en el marc del procés de reforma dels Estatuts d’Autonomia a l’Estat i en relació als …

Biometrics, Certified Software Solutions, And The Japanese Consumption Tax: A Proposal For The Tax Commission, Richard Thompson Ainsworth

Faculty Scholarship

Significant change is anticipated in the Japanese Consumption Tax. The Japanese Tax Commission is recommending that the rate should double, multiple rates should be employed, and the "bookkeeping method" of accounting should be abandoned in favor of the European "invoice method."

The Tax Commission faces a tax policy dilemma. The aging population drives the need for a tax increase (making the Consumption Tax an obvious target for revenue enhancement) at exactly the same time the population is shrinking in overall size, thereby reducing the number of working-consumers who can pay the higher tax.

These are dramatic changes for the Japanese …

Codifying Shari'a: International Norms, Legality & The Freedom To Invent New Forms, Paul H. Robinson, Adnan Zulfiqar, Margaret Kammerud, Michael Orchowski, Elizabeth A. Gerlach, Adam L. Pollock, Thomas M. O'Brien, John C. Lin, Tom Stenson, Negar Katirai, J. John Lee, Marc Aaron Melzer

All Faculty Scholarship

The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law). On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified Shari'a-based system …

Charting Developments Concerning Punitive Damages: Is The Tide Changing?, John Y. Gotanda

Working Paper Series

This essay discusses a number of developments outside of the United States concerning punitive damages, which may ultimately signal a change in the way other countries view American awards of such damages.

To date, courts in many countries have refused to recognize and enforce American punitive damages awards on the ground that they violate the host country’s public policy. In most civil law countries, such as France and Germany, penal damages can only be ordered in criminal proceedings; a civil award of such damages has been viewed as contrary to ordre public. In common law countries, while punitive damages generally …

Living With The Bologna Process: Recommendations To The German Legal Education Community From A U.S. Perspective, Laurel S. Terry

Faculty Scholarly Works

The Bologna Process is a dramatic development that is less than ten years old, but already it has significantly reshaped higher education in Germany and in Europe. This article is based on my research regarding the history and objectives of the Bologna Process and Bologna Process implementation in Germany. It contains my reflections about the Bologna Process and German legal education and my recommendations to the German legal education community.

Digital Consumption Tax (D-Ct), Richard Thompson Ainsworth

Faculty Scholarship

Modern technology is dramatically changing the way consumption taxes are collected, but it is also changing the way policymakers assess the operation and impact of these taxes. Whether the design is a standard credit-invoice value added tax (VAT) of European design, or a retail sales tax (RST) of American design, or the credit subtraction VAT without invoices type of consumption tax (CT) of Japanese design, technology is having a profound impact.

Government certified transaction software is in place in the United States. The Streamlined Sales Tax offers taxpayers in 18 states the option of having their retail sales tax determined …

Internalizing Gender: International Goals, Comparative Realities, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

This Article uses the example of international women's political rights to examine the value of comparative methodologies in analyzing the process by which nations internalize international norms. As internalized in Brazil and France, the Convention on the Elimination of All Forms of Discrimination Against Women suggests possibilities for (and possible limitations of) interdisciplinary comparative and international law scholarship. Indeed, international law scholarship is divided between theories of internalization and neorealist challenges to those theories. Comparative methodologies add crucial complexity to internalization theory, the success of which depends on acknowledging vast differences in national legal cultures. Further, comparative methodologies expose important …

Damages In Lieu Of Performance Because Of Breach Of Contract, John Y. Gotanda

Working Paper Series

In contract disputes between transnational contracting parties, damages are often awarded to compensate a claimant for loss, injury or detriment resulting from a respondent’s failure to perform the agreement. In fact, damages may be the principal means of substituting for performance or they may complement other remedies, such as recision or specific performance.

Damages for breach of contract typically serve to protect one of three interests of a claimant: (1) performance interest (also known as expectation interest); (2) reliance interest; or (3) restitution interest. The primary goal of damages in most jurisdictions is to fulfil a claimant’s performance interest by …

Can Appropriation Riders Speed Our Exit From Iraq?, Charles Tiefer

All Faculty Scholarship

To explore the implications of riders - provisions added to appropriation bills that "ride" on the underlying bill - on the United States' continued military force in Iraq, the author draws three hypotheticals, each focusing on the debate surrounding the policy and political disputes raised by the use of such riders. A "withdrawal" rider, which would authorize funding only if there exists a plan to withdraw American ground troops by a set deadline, remains the most important - and controversial - rider. Riders may also significantly affect wartime policies, like those that limit the President's use of reservists in combat …

We All Fall Down: Self-Fulfilling Prophecies And The Minority Question In China’S Educational Policies, Lauren A. Burke

East Asian Languages and Cultures Department Honors Papers

This paper does not have an abstract.

Law In Books, Law In Action And Society, Alan Watson

Colloquia

I consider myself a comparative legal historian and range widely over time and space. My interest is in private law. My general conclusions, developed over years, on law in society are three and are interconnected and are as follows: 1) Governments are not much interested in developing law especially not private law. They generally leave this to subordinate law makers to whom, however, they do not grant power to make law; 2) Even when famous legislators emerge, they are seldom interested in inserting a particular social message or even certainty into their laws; 3) Borrowing is the name of the …

What's Your Sign? -- International Norms, Signals, And Compliance, Charles K. Whitehead

Cornell Law Faculty Publications

This Article proposes a new approach to analyzing state compliance with international obligations, positing that increased interaction among the world's regulators has reinforced norms within cross-border regulatory networks, influencing the actions of senior regulators who are network members and, in turn, affecting levels of state compliance.

Network norms help define what state actions constitute signals and the meanings of those signals. Certain actions, such as implementing a substantive network standard, may be considered a concrete expression of an abstract network norm. States that fail to implement that standard risk failing to send the right signal, potentially incurring significant network sanctions. …

Comparative Chart Of “Right-To-Ask” Laws In The U.S. And Abroad, Workplace Flexibility 2010, Georgetown University Law Center

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

No abstract provided.

Europeanizing Self-Incrimination: The Right To Remain Silent In The European Court Of Human Rights, Mark Berger

Faculty Works

Since it came into force in September, 1953, the European Convention on Human Rights has served as a reflection of Europe's movement toward the establishment of common standards of individual human rights and freedoms. The forty-five countries that are currently signatories to the Convention are subject to the jurisdiction of the European Court of Human Rights (ECHR) which was established in 1959 as a mechanism to interpret and enforce the obligations created by the Convention. Although the Convention contains no explicit reference to a right to remain silent, and despite the differing legal systems of the contracting states, the Court …

The Culture Of Legal Change: A Case Study Of Tobacco Control In Twenty-First Century Japan, Eric Feldman

All Faculty Scholarship

This Article argues that the interaction of international norms and local culture is a central factor in the creation and transformation of legal rules. Like Alan Watson's influential theory of legal transplants, it emphasizes that legal change is frequently a consequence of learning from other jurisdictions. And like those who have argued that rational, self-interested lawmakers responding to incentives such as reelection are the engine of legal change, this Article treats incentives as critical motivators of human behavior. But in place of the cutting-and-pasting of black-letter legal doctrine it highlights the cross-border flow of social norms, and rather than material …

Bond Covenants And Creditor Protection: Economics And Law, Theory And Practice, Substance And Process, William Wilson Bratton

Articles

This article examines contractual protection of unsecured financial creditors in US credit markets. Borrowers and lenders in the United States contract against a minimal legal background that imposes the burden of protection on the lender. A working, constantly updated, set of contractual protections has emerged in response. But actual use of available contractual technology varies widely, depending on the level of risk and the institutional context. The credit markets sort borrowers according to the degree of the risk of financial distress, imposing substantial constraints only on the borrowers with the most dangerous incentives. At the same time, the contracting practice …

Of The Inequals Of The Uruguay Round, Srividhya Ragavan

Faculty Scholarship

Ten years ago, the TRIPs Agreement set a distinct tone in international law by requiring members to prioritize international trade obligations as a means to achieve national goals. Within the next five years, the AIDS crisis highlighted that compromising pressing national responsibilities - like a looming public health crisis - to fulfill international obligations may, in fact, detrimentally affect international trade. Meanwhile, access to medication continues to be an unresolved issue even as we celebrate the tenth anniversary of TRIPs and the end of the transitional period. This Article suggests that the success of TRIPs depends on its ability to …

Land Titling: A Mode Of Privatization With The Potential To Deepen Democracy, Bernadette Atuahene

All Faculty Scholarship

Land titling is a form of privatization in that public assets are transferred to private families and individuals. This is unlike other forms of privatization, however, because there is a systematic diffusion of economic and decision making power down to indigent populations rather than out of the country or up to its local elites. In light of this uniqueness, the question I will grapple with in this Article is, can property ownership, achieved through land titling programs, bolster democracy? First, using Peru as an example, I explain the context that necessitated the creation of land titling and the process by …

Examining A Comparative Law Myth: Two Hundred Years Of Riparian Misconception, Andrea B. Carroll

Journal Articles

This article is a first step in an effort to critically examine - and to debunk - some of the myths that persist about the degree to which the common and civil law systems differ. Specifically, the article questions the validity of recent scholarly commentary suggesting that the primary differences between the systems can be found in their substantive legal rules or in their respective "spirits." A relatively narrow issue of riparian access perfectly highlights the problem. Nearly all of the high courts in the United States that have examined this particular riparian issue have chosen to adopt either the …

No Laughing Matter: The Controversial Danish Cartoons Depicting The Prophet Mohammed, And Their Broader Meaning For The Europe’S Public Square, Ruti G. Teitel

Other Publications

No abstract provided.

Building A Better Lawyer Discipline System: The Queensland Experience, Leslie Levin

Faculty Articles and Papers

In many jurisdictions, lawyer-run discipline systems are inefficient, overly lenient and insufficiently responsive to consumer's concerns. Queensland's Legal Profession Act 2004 (Qld) breaks away from that model by moving lawyer discipline out of lawyers' professional associations and into an independent agency. It articulates a decidedly consumer-oriented approach to lawyer discipline and gives Queensland's new Legal Services Commissioner the power to investigate and prosecute all discipline complaints. This article looks at Queensland's recent reforms, and considers how well the new system is meeting its twin goals of consumer protection and traditional lawyer discipline. Using interviews and other data, the article identifies …

When Are Agreements Enforceable? Giving Consideration To Professor Barnett's Consent Theory Of Contract, James Maxeiner

All Faculty Scholarship

This address considers five points: (1) the place of theory in American contract law; (2) the basic elements of Professor Barnett's theory are; (3) how these elements are similar to Continental law; (4) what it says about the American legal world that Barnett's theory has been discussed without reference to Continental systems; and, finally, (5) why I believe the American model is not a good one for a future European Civil Code but also hope that such a Code will become law.

Transnational Criminal Law And Procedure: An Introduction, Sadiq Reza

Articles & Chapters

This preface to papers from the criminal law and procedure panels of the AALS Workshop on Integrating Transnational Legal Perspectives Into the First-Year Curriculum, which took place in Washington D.C. in January 2006, suggests a typology of transnational criminal matters - namely, matters of foreign criminal law or procedure, comparative criminal law or procedure, international criminal law or procedure, and extraterritorial aspects of domestic criminal law or procedure - and points readers to other publications on teaching transnational criminal matters in law school. The piece thus introduces the reader not only to the papers from the workshop but to teaching …

How To Deal With Multi-Party Nominations Of Arbitrators In International Commercial Arbitration - A Comparative Study Of Appointment Procedures With Emphasis On U.S.-European Commerce Between Private Entities, Marie-Beatrix Tupy

LLM Theses and Essays

The nomination procedure for the Arbitral Tribunal in commercial arbitration is one of the crucial points in the arbitral procedure. Parties have to have in mind the provisions of the New York Convention regarding the setting aside of an award in case of a failure during the nomination procedure of the tribunal. Besides from the famous Dutco case on multi-party arbitrations and their nomination procedures have received highest interest within the international arbitral world. As the thesis will comparatively show, all major arbitral institutions have updated their Rules, countries have even rendered new legislation with respect to the nomination procedure …

A Comparative Study On The Trade Barriers Regulation And Foreign Trade Barriers Investigation Rules, Junrong Song

LLM Theses and Essays

The Trade Barriers Regulation and Foreign Trade Barriers Investigation Rules are enacted in the European Union and China respectively. Both of them establish a procedure for the private sector to petition the government to challenge foreign trade barriers. Through the comparative study on the two pieces of law, this paper intends to dig out the similarities and differences between them and develop some suggestions for the improvement of them.

Balancing Regulations And Incentives For Foreign Direct Investment: A Case Study Of Mexico And Kazakhstan, Dauren B. Tynybekov

LLM Theses and Essays

Foreign Direct Investment (FDI) has a global character. As globalization grows, foreign direct investment grows. This research analyses the relationship between foreign direct investment and developing countries. The main contributors to foreign direct investment are multinational corporations and this research will show the impact of this kind of investment on the economy of developing countries. The research will show the way the developing countries try to benefit from FDI in order to complement their economic growth. This thesis will analyze the incentives and regulations the developing countries use to attract FDI and what needs to be done to make this …

Integrating Transnational Perspectives Into Civil Procedure: What Not To Teach, Kevin M. Clermont

Cornell Law Faculty Publications

No abstract provided.

Fielding A Team For The Fans: The Societal Consequences And Title Vii Implications Of Race-Considered Roster Construction In Professional Sport, N. Jeremi Duru

Articles in Law Reviews & Other Academic Journals

Professional sports organizations' relationships with their players are, like other employer-employee relationships, subject to scrutiny under the antidiscrimination mandates embedded in Title VII of the Civil Rights Act of 1964. Professional sports organizations are, however, unique among employers in many respects. Most notably, unlike other employers, professional sports organizations attract avid supporters who identify deeply with the teams and their players. To the extent an organization racially discriminates, therefore, such discrimination creates the risk that fans will identify with the homogenous or racially disproportionate roster that results. The consequences of such race-based team identification are wide-reaching and potentially tragic. Through …

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.