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2011

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Articles 10711 - 10740 of 11715

Full-Text Articles in Law

Volume 44 Issue 1 (2011), Cwru Journal Of International Law Jan 2011

Volume 44 Issue 1 (2011), Cwru Journal Of International Law

Case Western Reserve Journal of International Law

No abstract provided.

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Mandatory Versus Default Rules: How Can Customary International Law Be Improved?, Curtis A. Bradley, Mitu Gulati Jan 2011

Mandatory Versus Default Rules: How Can Customary International Law Be Improved?, Curtis A. Bradley, Mitu Gulati

Faculty Scholarship

Customary International Law (CIL) is plagued with uncertainties about its sources, its content, its manipulability, and its normative attractiveness. The rise of law-making through multilateral treaties also makes the proper role of CIL increasingly uncertain. This is an opportune time, therefore, to be thinking of ways to revive and improve CIL. In a prior article, we argued that the "Mandatory View" of CIL, pursuant to which nations are barred from ever withdrawing unilaterally from rules of CIL, is functionally problematic, at least when applied across the board to all of CIL. We also suggested that CIL might be improved by …

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Sham Marriages, Ancillary Powers, And Moral Discourse: Toh Seok Kheng V. Huang Huiqun; Adp V. Adq, Siyuan Chen Jan 2011

Sham Marriages, Ancillary Powers, And Moral Discourse: Toh Seok Kheng V. Huang Huiqun; Adp V. Adq, Siyuan Chen

Research Collection Yong Pung How School Of Law

Is marriage an institution (of public morality) or a contract (of private ordering)? In Toh Seok Kheng, the High Court concluded that it was unable to declare a “sham marriage” void just because the motives behind the marriage seemed improper. In ADP, the High Court held that since a void marriage meant there was no marriage to begin with, the “wife” was not entitled to maintenance, and there could not have been any “matrimonial assets” to be divided, unless she had a strong “moral” claim. This piece considers how the aforementioned moral-contractual dichotomy emerges in these cases.

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The Unimportance Of Being "Electronic" Or Popular Misconceptions About “Internet Contracting”, Eliza Mik Jan 2011

The Unimportance Of Being "Electronic" Or Popular Misconceptions About “Internet Contracting”, Eliza Mik

Research Collection Yong Pung How School Of Law

Existing e-commerce literature abounds with misconceptions regarding both technology and contract law. Long-standing legal concepts are adorned with “e-” or “cyber-” to appear more exciting. The traditional contractual regime issupplanted with new principles instead of being supplemented with technological considerations. It is one thing, to include technology in legal analyses, it is another to create separate, technology-specific categories. Separate categories justify the departure from traditional principles. Most, if not all, alleged “challenges” created by new communication scenarios fit within the existing legal framework, technological complexity and novelty of the Internet notwithstanding. Most “challenges” are also unrelated to the fact that …

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Responsibility Of Schools In Dispensing Equal Justice: A Singapore Case Study, Rathna Nathan Jan 2011

Responsibility Of Schools In Dispensing Equal Justice: A Singapore Case Study, Rathna Nathan

Research Collection Yong Pung How School Of Law

The gap between the needs of indigents and the state subsidised legal services or pro bono legal services exist in all societies. Traditionally, the state and the legal fraternity have assumed responsibility to bridge this gap. Law schools have traditionally and culturally confined themselves to the academic instruction of the law. This paper considers whether law schools have an equal responsibility to plug this gap. Four main issues are considered. First, law schools have a professional responsibility to instill legal professionalism in law students, which includes educating students in a pro bono culture. Second, these responsibilities can be effectively discharged …

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Four Varieties Of Social Responsibility: Making Sense Of The 'Sphere Of Influence' And 'Leverage' Debate Via The Case Of Iso 26000, Stepan Wood Jan 2011

Four Varieties Of Social Responsibility: Making Sense Of The 'Sphere Of Influence' And 'Leverage' Debate Via The Case Of Iso 26000, Stepan Wood

All Faculty Publications

One of the key controversies in social responsibility discourse is whether an organization’s responsibility should be based on its capacity to influence other parties or only on its actual contribution to social and environmental outcomes. On one side of the debate are those who argue that the limits of an organization’s responsibility should be defined in terms of its “sphere of influence” (SOI): the greater the influence, the greater the responsibility to act. On the other side are those who reject the SOI approach as ambiguous, misleading, normatively undesirable and prone to strategic manipulation. Foremost among the critics is the …

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A Cooperative Conundrum? The Naalc And Mexican Migrant Workers In The United States, Robert Russo Jan 2011

A Cooperative Conundrum? The Naalc And Mexican Migrant Workers In The United States, Robert Russo

All Faculty Publications

Since its adoption in 1993 at the insistence of U.S. President Bill Clinton's administration, the labor side accords to the North American Free Trade Agreement (NAFTA) have been extensively examined, occasionally ridiculed, and often dismissed as irrelevant. Most analysis tends to focus on the disappointing results of the North American Agreement on Labor Cooperation (NAALC) in affecting meaningful changes in the conditions of workers in Mexico. In this article, I aim to take a different approach. My analysis focuses instead primarily on the efficacy of the NAALC process when complaints are made about alleged labor law violations in the United …

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Temporarily Unchained: The Drive To Unionize Foreign Seasonal Agricultural Workers In Canada – A Comment On Greenway Farms And Ufcw, Robert Russo Jan 2011

Temporarily Unchained: The Drive To Unionize Foreign Seasonal Agricultural Workers In Canada – A Comment On Greenway Farms And Ufcw, Robert Russo

All Faculty Publications

A Case Comment on Greenway Farms and UFCW

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Two Paths For Developing Anti-Avoidance Rules, Wei Cui Jan 2011

Two Paths For Developing Anti-Avoidance Rules, Wei Cui

All Faculty Publications

The author discusses the administration of anti-avoidance rules in China, and puts forth the argument that anti-avoidance rules are being applied in China not only in the absence of the rule of law, but also parallel to the rule of law. He suggests that Chinese taxpayers and tax administrators collectively have the choice of pursuing discussions about the boundary between legitimate and illegitimate tax planning along two paths the rule of law figures as an important norm, while in the other it t, and he discusses how each works in China.

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Introduction: Changing Dimensions Of The Canada-China Relations, Pitman B. Potter, Thomas Adams Jan 2011

Introduction: Changing Dimensions Of The Canada-China Relations, Pitman B. Potter, Thomas Adams

All Faculty Publications

Bilateral relations with the People’s Republic of China involve matters of great strategic interest to Canada. Recent changes in the frequency of high level visits; the effect, style and content of bilateral communications; and perspectives held by various sectors in each country about the other all suggest that the Canada-China relationship has changed significantly in recent years. China remains vitally important to Canada for a variety of reasons and in a variety of sectors. Political and diplomatic cooperation on issues of direct bilateral concern and also on issues of global import remains critically important. Commercial and trade ties linking Canada …

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At What Cost? Access To Consumer Credit In A Post-Financial Crisis Canada, Janis P. Sarra Jan 2011

At What Cost? Access To Consumer Credit In A Post-Financial Crisis Canada, Janis P. Sarra

All Faculty Publications

Access to consumer credit is influenced by many factors, such as amount and security of the consumer’s income, and credit card company and financial institution practices. Access is also driven by social, cultural and cognitive factors, including consumer understanding of the cost of credit; perceptions regarding ability to repay; cognitive influences regarding immediate consumption and delayed payment; understanding of the benefits and risks of debt to economic security; and the conflicts of interest inherent in the business of lending. Overall, bank and credit union credit has tightened since the global financial crisis. However, the study found that for many Canadians, …

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Prudential, Pragmatic And Prescient, Reform Of Bank Resolution Schemes, Janis P. Sarra Jan 2011

Prudential, Pragmatic And Prescient, Reform Of Bank Resolution Schemes, Janis P. Sarra

All Faculty Publications

The 2008-2009 global financial crisis highlighted the interdependency of financial institutions and markets worldwide. Globally, fiscal support packages totaling 3 trillion USD were introduced, placing enormous strain on the public finances of a number of countries. Even in jurisdictions such as Canada, with relatively well-managed banking systems, a generalized loss of confidence led to a sharp rise in funding costs. The largest negative effects of the financial crisis on the Canadian economy stemmed from crises originating in other countries, with adverse contagion effects on the Canadian banking system, making it very difficult for Canadian banks to fund themselves in foreign …

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Context, Choice, And Rights: Phs Community Services Society V. Canada (Attorney General), Margot Young Jan 2011

Context, Choice, And Rights: Phs Community Services Society V. Canada (Attorney General), Margot Young

All Faculty Publications

Constitutional law cases that revolve around the rights or circumstances of those groups most marginalized in Canadian society are not frequent cause for celebration. Typically, these cases push the boundaries of classical liberal understandings of the rights our Canadian Charter of Rights and Freedoms protects, asking the courts to recognize social and economic dimensions to liberties that are traditionally and popularly more narrowly construed. Such demands are more often than not sidestepped (or rejected outright) by courts, with the result that activist agendas focusing on leveraging Charter rights to achieve significant social change are less compelling than initially imagined. It …

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We Are The (National) Champions: Understanding The Mechanisms Of State Capitalism In China, Li-Wen Lin, Curtis J. Milhaupt Jan 2011

We Are The (National) Champions: Understanding The Mechanisms Of State Capitalism In China, Li-Wen Lin, Curtis J. Milhaupt

All Faculty Publications

While China appears to present a new variety of capitalism, frequently labeled "state capitalism," the features of this system - particularly the organizational structure surrounding China’s most important state-owned enterprises (the national champions) - remains a black box. Corporate governance scholarship on China has focused on listed firms, but listed SOEs in China are nested in vertically integrated corporate groups, and the groups are strategically linked to other business groups, as well as to the Communist Party and to governmental organs. While the parent company of the listed firms has a governmental controlling shareholder in the form of an agency …

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Indigeneity And Sovereignty In Canada's Far North: The Arctic And Inuit Sovereignty, Gordon Christie Jan 2011

Indigeneity And Sovereignty In Canada's Far North: The Arctic And Inuit Sovereignty, Gordon Christie

All Faculty Publications

As the Arctic “opens up” to exploration and economic development, a new stage in colonization looms. This essay builds toward a vision of Arctic nation-states meeting with the Inuit to work out how they might together come to an understanding of how decisions about the future of the Arctic may be appropriately made. The Inuit are currently actively resisting the new wave of colonization within a framework built on the bedrock of nation-state sovereignty. The notion of “sovereignty” serves as a keystone in a system of controlling narratives, functioning to generate and police ways of thinking about decision-making processes, a …

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The Tax Consequences Of Corporate Reorganisations In China, Wei Cui, Richard Krever Jan 2011

The Tax Consequences Of Corporate Reorganisations In China, Wei Cui, Richard Krever

All Faculty Publications

The story of China’s income taxation of corporate reorganisations falls into four distinct periods. The first years of the development of a market economy were a period of benign neglect as tax authorities came to grips with a new tax system and some domestic taxpayers exploited unintended exemptions for reorganisation transactions. A dialectic emerged during the second period of reform with a shift towards a more conventional company tax system based on widely-accepted normative tax principles, while at the same time concessional rules were enacted for transactions favoured by the economic planners. The third stage saw a winding back of …

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Macro- And Micro-Level Effects On Responsive Financial Regulation, Cristie Ford Jan 2011

Macro- And Micro-Level Effects On Responsive Financial Regulation, Cristie Ford

All Faculty Publications

We are approaching the 20th anniversary of Ian Ayres’ and John Braithwaite’s 1992 book, Responsive Regulation. This paper, which was prepared for a September 2010 workshop at UBC, considers the implications of the recent financial crisis for Ayres’ and Braithwaite’s concept of “enforced self-regulation.” Its main thesis is that flexible and iterative regulatory strategies, such as enforced self-regulation and its progeny, are more porous to influence from different planes of action than prescriptive regulation would be. When focusing on technical regulatory design strategies, scholars should therefore be cautious about bracketing or underestimating the problem of power operating at the “macro …

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The Prosecution Of Non-Disclosure Of Hiv In Canada: Time To Rethink Cuerrier, Isabel Grant Jan 2011

The Prosecution Of Non-Disclosure Of Hiv In Canada: Time To Rethink Cuerrier, Isabel Grant

All Faculty Publications

The author of this article argues that Canada’s current approach to the criminalization of HIV transmission is deeply flawed and cries out for clarification. The article first considers the risk of transmission of HIV under various conditions, as determined by recent scientific studies, and concludes that HIV is not easily transmissible through sexual activity. It next examines several crucial factors that contribute to the significance, or lack of significance, of sexual activity by HIV-positive individuals, concluding that the current law creates a “numbers game” for triers of fact. The article then proceeds to a comparative analysis of other Commonwealth countries, …

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Les Devoirs De L'Arbitre: Ni Un Pour Tous, Ni Tous Pour Un, William W. Park Jan 2011

Les Devoirs De L'Arbitre: Ni Un Pour Tous, Ni Tous Pour Un, William W. Park

Faculty Scholarship

Fans of the Alexandre Dumas novel Three Musketeers will remember that the adventure includes a fourth young man, d'Artagnan, who hopes to become one of the King’s guards, along with his friends Athos, Porthos, and Aramis, living by the motto “All for one, one for all”. Likewise, an arbitrator’s generally include four key obligation: accuracy, fairness, and efficiency, as well as vigilance in promoting an enforceable award. Prevailing litigants normally hope that the arbitral process will lead to something more than a piece of paper. To this end, they expect arbitrators to avoid giving reasons for annulment or non-recognition to …

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Judicial Takings And Collateral Attacks On State Court Property Decisions, Stacey L. Dogan, Ernest A. Young Jan 2011

Judicial Takings And Collateral Attacks On State Court Property Decisions, Stacey L. Dogan, Ernest A. Young

Faculty Scholarship

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection,1 the U.S. Supreme Court divided over the question whether takings alleged to have occurred as a result of judicial action should be treated identically to takings by legislative or executive actors. In this essay, we accept the plurality’s basic contention that it makes little sense to treat judicial takings of property categorically differently than takings by other branches of government. If a judge decided to condemn property for a highway project, for example, we agree with Justice Scalia that the Constitution would compel compensation, just as it does …

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Rethinking Radicalization, Randy Borum Jan 2011

Rethinking Radicalization, Randy Borum

Journal of Strategic Security

No abstract provided.

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The Development Of British Defence Policy: Blair, Brown And Beyond. By David Brown, Ed. (Burlington, Vt: Ashgate Publishing Company, 2010), Edward M. Roche Jan 2011

The Development Of British Defence Policy: Blair, Brown And Beyond. By David Brown, Ed. (Burlington, Vt: Ashgate Publishing Company, 2010), Edward M. Roche

Journal of Strategic Security

No abstract provided.

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Radicalization And The Use Of Social Media, Robin L. Thompson Jan 2011

Radicalization And The Use Of Social Media, Robin L. Thompson

Journal of Strategic Security

The use of social media tools by individuals and organizations to radicalize individuals for political and social change has become increasingly popular as the Internet penetrates more of the world and mobile computing devices are more accessible. To establish a construct for radicalization,the power and reach of social media will be described so there is common understanding of what social media is and how it is utilized by various individuals and groups. The second section will answer the question of why social media applications are the perfect platform for the radical voice. Finally, the use of social media and its …

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Radicalization Into Violent Extremism I: A Review Of Social Science Theories, Randy Borum Jan 2011

Radicalization Into Violent Extremism I: A Review Of Social Science Theories, Randy Borum

Journal of Strategic Security

In discourse about countering terrorism, the term "radicalization" is widely used, but remains poorly defined. To focus narrowly on ideological radicalization risks implying that radical beliefs are a proxy—or at least a necessary precursor—for terrorism, though we know this not to be true.Different pathways and mechanisms of terrorism involvement operate in different ways for different people at different points in time and perhaps in different contexts. This article explores the problems in defining radicalization and radicalism, and suggests that radicalization—and more specifically, involvement in terrorism—might best be viewed as a set of diverse processes. It goes on to review several …

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Radicalization Into Violent Extremism Ii: A Review Of Conceptual Models And Empirical Research, Randy Borum Jan 2011

Radicalization Into Violent Extremism Ii: A Review Of Conceptual Models And Empirical Research, Randy Borum

Journal of Strategic Security

Over the past decade, analysts have proposed several frameworks to explain the process of radicalization into violent extremism (RVE). These frameworks are based primarily on rational, conceptual models which are neither guided by theory nor derived from systematic research. This article reviews recent (post-9/11) conceptual models of the radicalization process and recent (post-9/11) empirical studies of RVE. It emphasizes the importance of distinguishing between ideological radicalization and terrorism involvement, though both issues deserve further empirical inquiry.Finally, it summarizes some recent RVE-related research efforts, identifies seven things that social science researchers and operational personnel still need to know about violent radicalization, …

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Cover & Front Matter Jan 2011

Cover & Front Matter

Journal of Strategic Security

No abstract provided.

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Radical Islamism And Migrant Integration In Denmark: An Empirical Inquiry, Marco Goli, Shahamak Rezaei Jan 2011

Radical Islamism And Migrant Integration In Denmark: An Empirical Inquiry, Marco Goli, Shahamak Rezaei

Journal of Strategic Security

It has been suggested that alienation and failed integration may be causes of "Homegrown Radical Islamism" in Western societies. Western countries often expect that migrants and their descendants residing there as citizens will embrace or support common democratic ideals as a predicate for—or consequence of—their societal integration. Conventional wisdom suggests: "The more you associate yourself with the cherished and established goals and means, the more you will disassociate yourself from Radical Islamism," and vice versa. We believe that, quite surprisingly, an empirical test of this idea is lacking. Based on a nationally representative sample of 1,113 youth (ages 15–30) in …

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Friction: How Radicalization Happens To Them And Us. By Clark Mccauley And Sophia Moskalenko (New York: Oxford University Press, 2011), Robin L. Thompson Jan 2011

Friction: How Radicalization Happens To Them And Us. By Clark Mccauley And Sophia Moskalenko (New York: Oxford University Press, 2011), Robin L. Thompson

Journal of Strategic Security

No abstract provided.

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Four Lessons From The Study Of Fundamentalism And Psychology Of Religion, Sara Savage Jan 2011

Four Lessons From The Study Of Fundamentalism And Psychology Of Religion, Sara Savage

Journal of Strategic Security

What lessons can the study of fundamentalism and the psychology of religion teach the newer field of Radicalization and Involvement in Violent Extremism (RIVE)? Four lessons and an intervention are offered in this article: (1) Religion is a robust human experience and cultural product that adopts a defensive shape when its worldview is threatened. (2) This does not mean that all "fundamentalisms" or radical versions of religion are somehow linked or perform similar functions; rather, they reflect the limited human repertoire to threat, yet within different cultural and historical contexts. (3) Causal explanations on the level of the individual are …

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Gangs, Terrorism, And Radicalization, Scott Decker, David Pyrooz Jan 2011

Gangs, Terrorism, And Radicalization, Scott Decker, David Pyrooz

Journal of Strategic Security

What can street gangs tell us about radicalization and extremist groups? At first glance, these two groups seem to push the boundaries of comparison. In this article, we examine the important similarities and differences across criminal, deviant, and extremist groups. Drawing from research on street gangs, this article explores issues such as levels of explanation,organizational structure, group process, and the increasingly important role of technology and the Internet in the context of radicalization. There are points of convergence across these groups, but it is important to understand the differences between these groups. This review finds little evidence to support the …

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