Law Commons^™

The Principle Of Equal Treatment In Triangular Relationships, Michael Gruenberger

Michael Gruenberger

The European Court of Justice [ECJ] held in Coleman v. Attrigde Law, Case C-303/06, E.C.R. I- [2008], that the prohibition of direct discrimination laid down in Art. 1 and 2 Directive 2000/78/EC is not limited only to people who are themselves disabled, but includes a less favorable treatment of an employee which is based on the disability of her child, whose care is provided primarily by that employee. The Coleman case is the first noticeable case in European anti-discrimination law with facts involving a triangular relationship: the person who presumably discriminates, the injured party and the carrier of the characteristics …

How (Not) To Discourage The Unscrupulous Copyist, Peter L. Ludwig

Peter L. Ludwig

This short article explores how the U.S. and Japanese courts implement the doctrine of equivalence when determining patent infringement. The doctrine of equivalence is a balance of, on one hand, the public’s interest to know the metes and bounds of the patent; and on the other hand, the private interest of the patentee to be granted a sufficient scope for the granted patent. After comparing and contrasting the courts’ implementation of the doctrine, I propose a new method that places the burden on the patent practitioner, before infringement proceedings begin, to determine the proper scope of the patent.

Federal Forfeiture And Money Laundering: Undue Deference To Legal Fictions And The Canadian Crossroads, Max M. Nelson

University of Miami Inter-American Law Review

No abstract provided.

Success, Dominance, And Interoperability, Alan Devlin, Michael Jacobs, Bruno Peixoto

Indiana Law Journal

In September 2007, the European Court of First Instance (CFI) ruled that Microsoft violated the European Union's competition law by failing to provide certain of its rivals with proprietary computer protocols that would have enabled them to make their products fully "interoperable" with Microsoft's dominant operating system. In the process, the court suggested that an owner of certain kinds of dominant intellectual property is obliged to share its property with rivals to the extent necessary to allow those rivals to compete "viably" with the dominant firm. Thus, in theory, should protocol sharing fail to achieve the requisite degree of "viability, …

Through A Russian Looking Glass: The Development Of A Russian Rule Of Law And Democracy, Whitney R. Cale

Whitney R Cale

U.S. policymakers, scholars, and citizens alike, have failed to recognize the reality of Russian law and democracy today. Instead, they have embraced a distorted view that concludes that Russian leadership has “hijacked” Russia. This Article challenges this dominant view arguing arguing that a more nuanced approach to Russia is necessary. Specifically, Russia’s multi-faceted and storied history, and intensely fervent nationalism have formed a unique worldview that provides the lens through which to view that country’s understanding of the rule of law and democracy. It is through this lens that the Russia of today may be reconciled, because although Russian leaders’ …

Reproductive Rights In The Legal Academy: A New Role For Transnational Law, Martha F. Davis, Bethany Withers

Journal of Legal Education

No abstract provided.

A Comparison Of The Freedom Of Speech Of Workers In French And American Law, Patrick Morvan

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Foreword: Freedom Of Expression: "Precious Right" In Europe, "Sacred Right" In The United States?, Elisabeth Zoller

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Putting Aside The Rule Of Law Myth: Corruption And The Case For Juries In Emerging Democracies, Brent T. White

Brent T. White

Since the mid-1990’s, international donor agencies and development banks have invested millions to reform post-communist judiciaries in Central Asia and Europe. This investment has been driven by the belief that economic growth and democracy depend upon the “rule of law.” “Rule of law” in turn depends on a well-functioning and independent judiciary. After over a decade of rule of law reform, however, Central Asia is characterized by growing authoritarianism and judiciaries across both Central Asia and Eastern Europe are afflicted by rampant corruption. Both the rule of law and democracy have been elusive. Rule-of-law reform projects throughout the post-Soviet space …

The Rule Of Law In Comparative Perspective, Mortimer N.S. Sellers, Tadeusz Tomaszewski

Books

This new volume on The Rule of Law in Comparative Perspective compares the different conceptions of the rule of law that have developed in different legal cultures. Lawyers and legal scholars from various legal systems describe the social purposes and practical applications of the rule of law, and how it might be improved in the varied circumstances of their own courts and politics.

This book will be of interest to lawyers, judges, public officials, and to all those wishing to improve the fundamental structures of their own legal systems, by bringing equal justice to every person subject to the power …

Choice Of Law In Cross-Border Torts: Why Plaintiffs Win, And Should, Symeon C. Symeonides

Symeon C Symeonides

This Article is the first comprehensive study of how American courts have resolved conflicts of laws arising from cross-border torts over the last four decades. This period coincides with the confluence of two independent forces: (1) a dramatic increase in the frequency and complexity of cross-border torts generated by the spectacular expansion of cross-border activity now known as globalization; and (2) the advent of the American choice-of-law revolution, which succeeded in demolishing the old regime in forty-two U.S. jurisdictions, but failed to replace it with anything resembling a unified system. One of the findings of the Article is that, despite …

The Pursuit Of Life, Liberty, Happiness…And Fairness? Property Division In American And English Big Money Divorce Cases, Margaret Ryznar

Margaret Ryznar

Eyebrows have recently arched not only at the high sums involved in big money divorce cases, but also at the amount of ink spilled on this relatively small subset of divorce cases. Yet, it is precisely in big money cases that fairness acquires substantial haziness. Is it fair for a high-wage earner to pay an ex-spouse half of his future profits? Or, would it be fairer for the ex-spouse to be awarded less than half, but still receive millions of dollars? Such questions are particularly acute in short marriages or when one spouse is at fault for the divorce. Courts …

In Pursuit Of Justice Prosecuting Terrorism Cases In The Federal Courts - 2009 Update And Recent Developments, James J. Benjamin Jr.

Case Western Reserve Journal of International Law

No abstract provided.

Informal Land Subdivision And Real Estate Regularization: A Comparative Study Between Colombia And Brazil, Alexandre Dos Santos Cunha

University of Miami Inter-American Law Review

No abstract provided.

Switzerland, Samuel P. Baumgartner

Akron Law Faculty Publications

Switzerland has the traditional Austro-German representative association procedures. Debate on adoption of other models, given the opportunity of the introduction of a first federal Code of Civil Procedure, reveals considerable cautious conservatism toward reform.

Roe And The Politics Of Backlash: Countermobilization Against The Courts And Abortion Rights Claiming, Scott E. Lemieux

Scott E Lemieux

Conventional wisdom holds that Roe v. Wade might have been a serious strategic error on the part of the pro-choice movement, as abortion law was being liberalized anyway and the Supreme Court's intervention produced a furious backlash. This paper argues that every element of this argument is erroneous. The drive for liberalization was stalled before 1973 by a very well-organized pro-life movement, and both the American and Canadian cases suggest that judicial opinions do not produce any more backlash than commensurate legislative policy changes.

The Meanings Of Dishonesty In Theft, Alex Steel

Alex Steel

This paper examines the development of the element of fraudulence in larceny and its recasting as dishonesty in modern theft offences. It examines the diverging approaches in England, Canada, New Zealand and Australia and attempts to explain the implications of the various approaches. It suggests that historical debates over the term arose because of the lack of clarity in early decisions, and that those debates continue today. Consequently, the principled basis for dishonesty as a legal term remains fundamentally unclear and discussion of the term requires further consideration.

Recognition Of Overseas Same Sex Marriages: A Matter Of Equality And Sound Statutory Interpretation, Dr Leonardo J. Raznovich

Dr Leonardo J Raznovich

It is accepted that the institution of marriage is more than economic benefits. The availability of marriage to same sex couples in eight western democratic jurisdictions exerts pressure on courts to consider the substance and ethical dimension of marriage across borders. This paper analyses the legal and ethical problems that exclusion of same sex couples from marriage generates in relation to equality and individual freedoms in a democratic society. The paper focuses on the particular case of overseas same sex married couples that seek to immigrate to England. Part I analyses the legal recognition of overseas same sex marriages under …

Wild-West Cowboys Versus Cheese-Eating Surrender Monkeys: Some Problems In Comparative Approaches To Extreme Speech, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

All European states ban some form of hate speech. US law precludes such bans. In view of the political and symbolic importance of free speech, it becomes tempting to assume that trans-Atlantic differences towards hate speech reflect deeper cultural divisions.

However, we must pay attention to comparative methodology before drawing ambitious conclusions about cross-cultural social and political differences that derive solely from differences in formal, black-letter norms. In this volume, Robert Post claims that formal, constitutional requirements of content-neutral regulation reflect a freer public sphere in the US, in contrast to the European public sphere.

Yet a legal-realist approach casts …

Switzerland, Samuel P. Baumgartner

Samuel P. Baumgartner

Switzerland has the traditional Austro-German representative association procedures. Debate on adoption of other models, given the opportunity of the introduction of a first federal Code of Civil Procedure, reveals considerable cautious conservatism toward reform.

Lawyers Without Borders, Catherine A. Rogers

Journal Articles

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

The Evolution Of Chinese Merger Notification Guidelines: A Work In Progress Integrating Global Consensus And Domestic Imperatives, Susan Beth Farmer

Journal Articles

China is among the most recent entrants into global competition enforcement, having adopted the first competition law of general application, the Anti-Monopoly Law (AML) after more than a decade of drafting. The AML and Merger Notification Thresholds, rules issued by decree of the State Council, became effective on August 3, 2008. Both the law and the guidelines were subject to public review and comment, and went through a number of drafts before final adoption.

This article is a comprehensive comparison of merger standards across jurisdictions, with particular focus on the evolution of merger regulation in China. It comprises six parts; …

Lawyers Without Borders, Catherine A. Rogers

Journal Articles

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet

Journal Articles

Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …

The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, Mark J. Sundahl

Law Faculty Articles and Essays

This article provides a fresh perspective on the originalism debate by undertaking a comparative study of constitutional interpretation in the United States and ancient Athens. By observing how the ancient Athenians resolved the same interpretational problems that face the Supreme Court today, we are able to gain a better understanding of the issues that drive the originalism debate. The study focuses on Athenian practice in 350 B.C., which falls late in the history of the Athenian democracy, well after the legal system had achieved its final form. Like the United States, Athens had a strong tradition of judicial review and …

Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Faculty Scholarship

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …

The Use And Abuse Of Foreign Law In Constitutional Interpretation, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

This article provides an exhaustive typology of the uses of foreign law in order to provide insight into whether foreign law can be appropriately used in constitutional interpretation, when it can be used, and what the stakes and parameters are in each case. In doing so, the article addresses two significant problems in the debate on foreign law. First, much of the commentary has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured the more basic question about the ways …

Voices Saved From Vanishing, Vivian Grosswald Curran

Articles

Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain examines the lives of eighteen émigré lawyers and legal scholars who made their way to the United Kingdom, almost all to escape Nazism, and analyzes their impact on the development of English law.

Comparative Law And The Legal Origins Thesis: [N]On Scholae Sed Vitae Discimus, Vivian Grosswald Curran

Articles

This essay offers some suggestions for comparative law’s discomfort with the Legal Origins Thesis. The Legal Origins Thesis then becomes the point of departure for a discussion of contemporary comparative law’s “existential angst.”

Comparative Law As A Bridge Between The Nation-State And The Global Economy: An Essay For Herbert Bernstein, Richard M. Buxbaum

Faculty Scholarship

Professor Richard M. Buxbaum delivered the Fourth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2005 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In this paper, Richard Buxbaum is primarily concerned with the potential of comparative law as a method to bridge the disparities between the laws of nation-states and the needs of the globalized economy. Buxbaum investigates three separate roles for comparative law in closing this gap: First, he discusses the potential uses of comparative law with regard to …