Law Commons^™

Divided By Common Language: 'Capture' Theories In Gatt/Wto And The Communicative Impasse, Dongsheng Zang

UC Law SF International Law Review

Since the 1999 ministerial conference in Seattle, the WTO has been plagued by a series of collapses in trade negotiations: 2001 in Doha, 2003 in Cancun, 2006 in Hong Kong, and most recently, July 30th, 2008 in Geneva. How to understand the stalemates? What is behind the communicative impasse between the developing countries and the developed countries? This article examines a key conceptual framework in the discourse on trade policy: "capture" theories. It tracks two groups of "capture" theories: first, "capture" theories during the 1980s GATT which set the foundation for the WTO, and second, "capture" theories espoused by developing …

A Law Of No Gods, No Masters - Developing And Defending A Participatory Legal System, Matt Halling

UC Law SF International Law Review

This note develops and analyzes a new legal vision consistent with recent activist literature about a participatory society. A participatory society (in this note) consists of collectively owned property, a decentralized state, and attempts to maximize citizen participation in politics. Rather than nation states, society is structured as a federation of councils deliberating and coordinating with each other to solve political issues. Participatory society's structure demands a "participatory law" be developed to manage it, and this note attempts to develop the overarching features of such a system. Once the basic legal model is outlined, the article then looks for comparisons …

The Influences Of The West On The 1993 Russian Constitution, Victoria Schwartz

UC Law SF International Law Review

This article explores the influences of the West on the text of the 1993 Russian Constitution. Although previous scholarship has identified Western influences on the Russian Constitution, these works do not trace how or why the particular transplant occurred. This article has a descriptive and analytical, but not normative goal of filling that gap by explaining the transplants that occurred, and why and how they were made. Among its conclusions, the article finds that the choices made by the framers of the 1993 Russian Constitution can often be explained by the contemporaneous political situation within Russia. Part of the uniqueness …

Victims Of Armed Conflict And Persecution In South Africa: Between A Rock And A Hard Place, Edwin Odhiambo Abuya, Dulo Nyaoro

UC Law SF International Law Review

This paper examines the extent to which African States have cemented their commitments to protect persons forced to flee from their home states owing to armed conflict and/or persecution. Using South Africa as a case study, this paper examines the experience of refugees and asylum seekers at the hands of South African Police. Two central issues are, first, the identity documents that are issued to asylum seekers and refugees coming to South Africa, and second, the constitutional rights to privacy and security, which are promised to all. It is contended that although law enforcement officials are generally required by law …

Addressing Judicial Activism In The Indian Supreme Court: Towards An Evolved Debate, Madhav Khosla

UC Law SF International Law Review

The Indian Supreme Court has invited a great deal of interest for its alleged activism and the role that it has begun to play in Indian governance. Recent years have been witness to substantial debate on the Court's functioning, with scholars positing views and raising concerns with considerable passion. This paper analyzes the judicial activism discourse in the Indian Supreme Court by focusing on the contributions of Professor Upendra Baxi. It argues that, despite the attention the Court has received on the question of judicial activism, the debate in this area has, for the most part, failed to engage with …

Trade Sanctions, Human Rights And Multinational Corporations: The Eu-Acp Context, Olufemi Amao

UC Law SF International Law Review

This paper examines the human rights dimension of trade agreements between the European Union ("EU") and the African Caribbean and Pacific ("ACP") group of countries and their relevance to the control of multinational corporations ("MNCs"). It notes that even though MNCs are the major beneficiaries of the agreements, they have not been prominent in the discourse. The paper explores the foundation for the inclusion of human rights issues in trade agreements, and argues in favour of their legitimacy. The study contends that human rights clauses in the agreements should be triggered where there are human rights violations in the territory …

Mere Words: The Enemy Entity Designation Of The Gaza Strip, Carey James

UC Law SF International Law Review

Israel has occupied the West Bank and Gaza Strip since June of 1967. Despite the withdrawal of Israeli military forces and the dismantling of Israeli settlements in 2005, Gaza is still generally considered occupied territory as a matter of international law. In September 2007, Israel declared the Gaza Strip a "hostile territory." This note examines the probable aims and legal effects of the hostile territory designation.

Reassessing The Dialogic Possibilities Of Weak-Form Bills Of Rights, Christine Bateup

UC Law SF International Law Review

In recent years, weak-form bills of rights have generated much excitement in contemporary constitutional scholarship because they are believed to create a new balance between parliamentary and judicial supremacy based on inter-branch "dialogue" between courts and legislatures. Few scholars, however, have examined the foundational question of whether judges and legislators can actually be expected to behave in a way that realizes the dialogic potential of weak-form instruments. This Article takes a new approach to this question, applying the insights of positive theory to engage in a comprehensive assessment of the behavior we can realistically expect of courts and legislatures in …

Law Across Borders: What Can The United States Learn From Japan, Eric A. Feldman

UC Law SF International Law Review

No abstract provided.

Symbol Of Freedom: Atsa And International Efforts To Increase Security, Valerie Kraml

UC Law SF International Law Review

In 2002, the United States ("U.S.") p assed the Aviation and Transportation Security Act ("ATSA"), under the umbrella of the Patriot Act, which required the collection and dissemination of all international airline passengers' private data, such as name, address, credit card, before foreign airlines could pass over land on U.S. territories. Compliance with the ATSA was highly controversial in the European Union ("E.U."), which maintains strong domestic privacy and personal liberty laws. Efforts to bridge the conflict in domestic privacy laws have led to numerous attempts by the U.S. and E.U. to reach an agreement to increase international security within …

Dream Palaces Of Law: Western Constructions Of The Muslim Legal World, Haider Ala Hamoudi

UC Law SF International Law Review

No abstract provided.

China's Anti-Monopoly Law: Insights From U.S. And Eu Precedents On Abuse Of Dominance And Ip Exemption Provisions, Yin Zhou

UC Law SF International Law Review

Since opening to the global market in 1978, China has enjoyed consistent and rapid economic growth for the past three decades. Such liberalization and economic growth created a need for regulations to maintain a smoothly functioning market. By the mid-1990s, the need for a set of antitrust laws became apparent in light of the rise in domestic consumerism and investments from large foreign corporations. After thirteen years of drafting and revisions, China passed its Anti-Monopoly Law ("AML") on August 30, 2007. The AML came into effect a year later on August 1, 2008, but many companies started seeking legal advice …

Panel Iv - "Can The West Learn From The Rest?" - The Chinese Legal Order's Hybrid Modernity, Nicholas Calcina Howson

UC Law SF International Law Review

No abstract provided.

Changing The Current Policy Towards Spousal Abuse: A Proposal For A New Model Inspired By Jewish Law, Yuval Sinai, Benjamin Shmueli

UC Law SF International Law Review

Abuse in general, and within an ongoing, intimate relationship with a spouse in particular, is a scourge that the legal system must uproot. This paper examines two models that differ in their approach to the issue of spousal abuse (physical, sexual, and emotional): modern secular common law, as represented by two legal systems-American and Israeli law-and ancient, religious Jewish law. Thus, the paper offers an opportunity to see and analyze the dialogue between an ancient, religious legal system and its modern, secular counterparts, and the possible-perhaps surprising--contribution of the former to the latter.

The two models, secular common law and …

Divine Judgment: Judicial Review Of Religious Legal Systems In India And Israel, Josh Goodman

UC Law SF International Law Review

This paper analyzes and compares how two democratic states, India and Israel, incorporate discrete areas of religious law into their secular legal systems. As religion has become an increasingly important political force in India and Israel, both countries have turned to constitutionalism and to civil courts to manage the role of religious law within the democratic system. This development represents the convergence of two global trends: an expansion in the power of courts and the growth of religious politics. This paper examines how the conflict of secular and religious legal norms has played out in the Israeli and Indian civil …

The Importance Of Teaching Law And The Reinforcement Of The Judiciary System In Haiti, Jomanas Eustache

UC Law SF International Law Review

This article is a reflection on the inseparable binome "Law and Justice." The concepts of Law and Justice are so intertwined that the absence or weakness of either can lead to impunity and finally to a lack of peace in society. Unfortunately, some behavior, misconduct, or practices, are mainly facilitated by the malfunction of the judicial system. This can be seen all too clearly in the situation in Haiti. This article highlights the urgency of the situation and the need for all interested sectors and individuals to act swiftly, legally, and with firmness to ensure and strengthen the basis of …

What The Rest Think Of The West - Legal Dimensions, Laura Nader

UC Law SF International Law Review

No abstract provided.

Beyond Corporate Social Responsibility: Reconciling The Ideals Of A For-Benefit Corporation With Director Fiduciary Duties In The U.S. And Europe, Alissa Mickels

UC Law SF International Law Review

Traditionally, organizations are divided into three sectors: for-profit, non-profit, and the government. Over the past few decades, a new Fourth Sector of organizations has been emerging in the U.S. and abroad. These "Fourth Sector" organizations attempt to integrate social purposes with business methods as seamlessly as possible. A few social entrepreneurs take a more ambitious approach to this "hybrid" approach and are creating For-Benefit corporations that, in addition to integrating social purposes with business methods, adopt a corporate policy to benefit all stakeholders, require inclusive governance and ownership, accountability, and transparency. Will the law allow these For-Benefit corporations to benefit …

The Right To A Fair Trial And The Confrontation Clause: Overruling Crawford To Rebalance The U.S. Criminal Justice Equilibrium, Lindsay Hoopes

UC Law SF International Law Review

In the United States, the right to confrontation is the hallmark fair trial protection. Most foreign and international jurisdictions have adopted the right to confrontation as an integral component of their fair trial protections, modeling the right after the U.S. Constitution's Sixth Amendment. Just as any other right, the right to confrontation requires society to strike a balance between a defendant's right to a fair trial with other competing rights in the criminal justice system: namely, victim's and society's right to adjudication of criminal matters.

Historically, the United States allowed abrogation of the right to confrontation when evidence was sufficiently …

Duty Of Confidentiality In Korea, Suh-Young Shin

UC Law SF International Law Review

The duty of confidentiality is fundamental for the relationship between an attorney and the client. How and when the duty of confidentiality should be enforced upon an attorney has been debated in Korea, after a former in-house counsel of Samsung Group publicly disclosed that the chairman of Samsung allegedly engaged in illegal conduct. Relevant rules from the Korean Bar Association Code of Ethics and Conduct are not specific enough to allow one to assess the act of the former in-house counsel. This note analyzes the issue first under the Korean rules, and then under the relevant U.S. rules. While acknowledging …

The End Of Peremptory Challenges: A Call For Change Through Comparative Analysis, Amy Wilson

UC Law SF International Law Review

Lawyers use peremptory challenges to create partial juries. United States Supreme Court precedent has shown the Court's willingness to limit some blatantly discriminatory uses of the right to peremptory challenges. However, the use of peremptory challenges in jury voir dire is inherently discriminatory. Merely limiting the use of peremptory challenges is not sufficient. This note discusses how jury selection is treated in the United Kingdom. The analysis is specifically focused on the abolition of peremptory challenges in the United Kingdom and uses the experience there to argue for an abolition of their use in the United States as well.

Eight Perspectives On Yvon Neptune V. Haiti, Jens Iverson

UC Law SF International Law Review

Yvon Neptune v. Haiti is a noteworthy decision of the Inter- American Court of Human Rights, with potentially wide-ranging impacts. The Court ordered a wholesale change in the Haitian prison system in order to prevent Haiti from violating former Haitian Prime Minister Yvon Neptune's rights again. Haiti violated Articles 1 (obligation to respect rights), 5 (humane treatment), 7 (personal liberty), 8 (fair trial) and 25 (the right to judicial protection) of the American Convention on Human Rights. Haitian and U.S. human rights groups worked together with a "virtual" human rights clinic to trigger the decision by filing a petition with …

Introduction - Recent Events In Gaza, Rose Mishaan

UC Law SF International Law Review

No abstract provided.

The Preliminary Reference Procedure Of The Court Of Justice Of The European Communities: A Model For The Icj, Alicia Farrell Miller

UC Law SF International Law Review

When nations fail to observe their international obligations it undermines both respect for and future compliance with international law. In the so-called vicious cycle, the more the law is flouted, the less legitimate it becomes and the less states and individuals feel bound by it. The United States Supreme Court in Medellin recently exemplified this vicious cycle by spurning the authority of the International Court of Justice ("ICJ") and holding that a decision of the ICJ is not self-executing and thus does not constitute binding federal law. In contrast, the Court of Justice of the European Communities (formerly known as …

It's Just Business, Or Is It: How Business And Politics Collide With Sovereign Wealth Funds, Matthew Saxon

UC Law SF International Law Review

Over the past few years, sovereign wealth funds have played an increasingly important role in the global financial system. This note seeks to shed light on the foreign investment vehicles known as sovereign wealth funds (SWF's). In the first section I will explain what a sovereign wealth fund is; why regulators in the U.S. and European have recently become concerned with them; and how SWF's have reacted to these concerns. In the second section, I will compare and contrast the strategies that U.S. and European regulators have employed in adjusting to these funds. Finally, I will argue that lawmakers in …

Nation-Building In The Penumbra: Notes From A Liminal State, Monica Eppinger

UC Law SF International Law Review

No abstract provided.

The Exceptional Nature Of Terrorism: The United States And Middle Eastern Legal Systems, Wadie E. Said

UC Law SF International Law Review

No abstract provided.