Law Commons^™

The Procedural Fortress Of Us Immigration Law, Jill Family

Jill E. Family

A Contribuição Da Doutrina Na Jurisdição Constitucional Portuguesa E Brasileira, Teresa M. G. Da Cunha Lopes

Teresa M. G. Da Cunha Lopes

O presente livro pretende fazer um estudo interformantes, com o fim de verificar se a jurisprudência das Cortes Constitucionais e Supremas resulta explicitamente permeável ao formante doutrinário. Por outro lado, o objeto principal da investigação são as citações diretas da doutrina que utilizam os juízes na motivação das decisões.

Cisg Translation Issues: Reducing Legal Babelism, Claire M. Germain

Claire Germain

The CISG (Convention on Contracts for the International Sale of Goods) has remarkably facilitated commercial transactions across boundaries and different legal systems. This article, to be published as a Book Chapter, discusses some possible difficulties caused by using different languages, or words which might be interpreted differently, and some solutions and ways to deal with these difficulties. Three kinds of issues have appeared: the first has to do with drafting issues, and the peculiar problem of the six official languages of the Convention. The second set of issues deals with the interpretation of the Convention and the so-called homeward trend. …

G. Delledonne, G. Martinico, P. Popelier (Eds), Re-Exploring Subnational Constitutionalism, Special Issue. Perspectives On Federalism, Vol. 6, Issue, 2014, Giuseppe Martinico, Giacomo Delledonne, Patricia Popelier

Giuseppe Martinico

This special issue of the journal, which collects some of the papers presented at the latest World Congress of the International Association of Constitutional Law in Oslo, is entirely devoted to subnational constitutionalism. Its approach is mainly comparative and interdisciplinary. The symposium is divided into three sections: theoretical problems, national reports, and comparative analyses. The papers deal with ever-recurring issues, as well as with emerging discussions (e.g., the debates about secession in Scotland and Catalonia, and the drafting of a “Charter” for Flanders).

La Rebeldía De J.Waldron: ¿Es Democrático El Control Judicial Constitucional?, Joshimar De La Cruz Aroni

Joshimar De la cruz Aroni

Constitutional Law

Brian H. Stuy (With Foreward By David Smolin), Open Secret: Cash And Coercion In China's International Adoption Program, Brian H. Stuy

David M. Smolin

Open Secret is a documentation and analysis of seriously abusive practices in China's intercountry adoption system. The article describes three kinds of abuses: baby-buying programs at Chinese orphanages, "confiscations" of children by population control officials, and "education" programs in which orphanages falsify the ages and family situation of teenagers in order to make them paper eligible for intercountry adoption. The article questions the effectiveness of the Hague legal regimen for intercountry adoption, particularly in the context of China. A brief foreward by David Smolin places Brian Stuy's extensively-researched article about adoptions from China in a broader context.

Desvelando Los Intereses Ocultos: Neoliberalismo En La Nueva "Defensa Posesoria Extrajudicial", Joshimar De La Cruz Aroni

Joshimar De la cruz Aroni

Visión crítica de la Nueva Defensa Posesoria Extrajudicial

The National Historic Preservation Act: Preserving History, Impacting Foreign Relations?, Mark P. Nevitt

Mark P Nevitt

The National Historic Preservation Act (NHPA) is a remarkable statutory success story, properly lauded for protecting American historic properties since its passage in 1966. But there is another, more intricate story to the NHPA. Congress added a unique extraterritoriality provision to the NHPA, implementing U.S. obligations under the World Heritage Convention (WHC), a treaty that protects properties of cultural and natural heritage worldwide. This provision requires federal agencies to take into account the effect of any undertaking outside the United States on the applicable nation’s equivalent National Register. Its proper scope and jurisdiction were unclear–until recently.A federal district court ruled …

Ensayo Sobre La Nueva Ley Universitaria 30220, Joshimar De La Cruz Aroni

Joshimar De la cruz Aroni

No abstract provided.

Plead Guilty, Without Bargaining: Learning From China’S “Summary Procedure” Before Enacting Indonesia’S “Special Procedure” In Criminal Procedure., Choky Risda Ramadhan Mr.

Choky Risda Ramadhan Mr.

Because Indonesian courts are increasingly overrun with criminal cases, Indonesian lawmakers recently introduced a criminal procedure bill to include “special procedure” (jalur khusus), a procedure that allows defendants to plead guilty in order to increase efficiency. Unlike plea-bargaining in the U.S., this procedure more resembles China’s “summary procedure,” which is solely conducted by a judge, not negotiated independently by prosecutors and defendants. Before enacting the provision of special procedure, however, Indonesian lawmakers should learn from China’s successes and failures implementing summary procedure. While this procedure resulted in increased efficiency in China, it did not provide for defense counsel, and …

Cuba And China: A Comparative Study Of Digital Oppression, Katharine M. Villalobos

Katharine M. Villalobos

The Digital Age has introduced a new form of expression that totalitarian states are struggling to silence. With social sharing websites like Twitter and Youtube, political dissidents living under oppressive governments can expose governmental abuse to web-users worldwide in a matter of seconds. However, while digital media has proved more difficult to control than traditional, non-electronic media, dictatorships like Cuba and China are resolved to prevent its inhabitants from freely using and expressing themselves on the Internet—even if that means violating their obligations as signatories of the International Covenant on Civil and Political Rights (ICCPR).

Both Cuba and China are …

Comparative Law In A Time Of Globalization: Some Reflections, Thomas C. Kohler

Thomas C. Kohler

This piece discusses the tension between internationalization of legal ordering and the growing pressure against local and national ordering. Using Aristotle, Tocqueville, the Reception of Roman Law as forebears of the problem, I discuss three major European Court of Justice decisions (Laval, Viking and Schmidberger) as examples of the displacement of local ordering. I conclude that the task of comparative law is to focus on the importance of local ordering, keeping the human at the center and not vague principles generated by international bodies with no or little local ties.

The Time Has Not Yet Come To Repair The World In The Kingdom Of God: Israeli Lawyers And The Failed Jewish Legal Revolution Of 1948, Assaf Likhovski

Assaf Likhovski

At certain moments in Israel's legal history, Jewish lawyers were forced to choose between their commitment to the professional interests of their guild and their commitment to Jewish nationalism. This dilemma was especially apparent in the debates surrounding what can be called the failed Jewish legal revolution of 1948, when Israeli lawyers had to decide whether they wanted to maintain the legal status quo by retaining the legal system that Israel inherited from the British rulers of Palestine, or whether this legal system would be replaced by one that was connected in some way to Jewish law (the Halakha). What …

Tort Law: The American And Louisiana Perspectives, William Corbett, Frank Maraist, John Church

William R. Corbett

Tort Law: The American and Louisiana Perspectives, Second Edition has as its primary objective a study of tort law in the United States and Louisiana. It differs from most other torts casebooks, however, in that it has a secondary objective of providing an exercise in comparative law. In the United States, we often overlook the fact that the common law system that prevails in our nation is not the only legal system in the world. Much of the world applies a civil law approach in which a civil code has a more prominent role than case law. In a world …

Relying On Government In Comparison: What Should The United States Learn From Abroad In Relation To Administrative Estoppel?, Dorit R. Reiss

Dorit R. Reiss

The United States’ Supreme Court had never upheld a claim of estoppel against the government. A citizen relying on government’s advice does that at her peril: if the government was wrong, if it misrepresented the statute or interpreted it wrongly, it can (by some interpretations, must) go back on its word and the citizen has no recourse. The Supreme Court provided many arguments for that position, but the core of them involves protection of what the Europeans refer to as “the principle of legality”: the executive does not have the ability to waive requirements from primary legislation or deviate from …

The Global Workplace: International And Comparative Employment Law: Cases And Materials, William Corbett, Roger Blanpain, Susan Bisom-Rapp, Hilary Josephs, Michael Zimmer

William R. Corbett

The first casebook covering both international and comparative labor and employment law is characterized by its authorship by prolific, respected scholars, all of whom have taught law outside the United States. A solid conceptual framework compares national laws dealing with individual collective employment rights, including antidiscrimination law and privacy law, and considers the systems used to resolve labor and employment disputes in the context of international labor law. A sweeping coverage of international labor law considers the International Labour Organization, NAFTA and other bilateral trade agreements that include labor standards, and the European Union. In addition, The Global Workplace explores …

Sources Of Law And Pluri-Lingualism (In Greek), Nikitas E. Hatzimihail

Nikitas E Hatzimihail

This study (which replaces an earlier article published at the law journal Χρονικά Ιδιωτικού Δικαίου - Chronicles of Private Law, vol. 12 (2012)) examines issues arising from the translation of authoritative legal texts (constituting sources of law in the legal system under consideration), with an emphasis on legislation.

The first part of the article examines instances where authoritative texts of the same legal instrument co-exist in two or several languages, notably in the case of international uniform law instruments, such as the Vienna Convention on the International Sale of Goods (CISG).

The second part addresses instances of an instrument being …

A Preliminary Look At State Structures For Regulating Financial Services, Elizabeth F. Brown

Elizabeth F Brown

Within the past thirty-five years approximately fifty nations have consolidated their financial regulatory agencies into either a single integrated agency or into two semi-integrated agencies. The United States has resisted this trend, due in part to a concern that the costs of such significant consolidation would exceed its benefits. The existing studies that compare the costs of the consolidated regulators around the world with the United States regime have often been discounted because they have been unable to control for differences in culture and regulatory intensity between those other countries and the United States. This article attempts to address this …

Uganda’S New Sentencing Guidelines: Introduction, Initial Assessment And Early Recommendations, David B. Dennison

David Brian Dennison

In April of 2013 the Chief Justice of Uganda issued the Constitution (Sentencing Guidelines for the Courts of (Practice). In doing so Uganda joined a movement of criminal justice reform that cuts across anglophone jurisdictions. This article includes a general background on the emergence of sentencing guidelines and the two primary structural approaches to sentencing guidelines design.

This article’s primary purpose is to offer a preliminary critical assessment of Uganda’s Sentencing Guidelines. An overview of key features in the Sentencing Guidelines serves as a prelude to the analytical content.

Uganda’s Sentencing Guidelines are a commendable effort. They are more than …

The Political Question Doctrine In Uganda: A Reassessment In The Wake Of The Cehurd, David B. Dennison

David Brian Dennison

The political question doctrine protects certain governmental actions and decisions from judicial review. The doctrine emerged in the United States in the early 19th Century. It reached Ugandan jurisprudence in Ex parte Matovu in 1966. After Matovu, the doctrine existed in relative obscurity in Uganda. The doctrine made a dramatic resurgence in the Constitutional Court’s judgment in Centre of Health Human Rights & Development (CEHURD) and Three Others v. Attorney General.

In CEHURD, the Constitutional Court held that the political question doctrine prevented the court from reviewing government policy concerning the provision of maternal health care. The CEHURD judgment ruffled …

Surveillance, Speech Suppression And Degradation Of The Rule Of Law In The “Post-Democracy Electronic State”, David Barnhizer

David Barnhizer

None of us can claim the quality of original insight achieved by Alexis de Tocqueville in his early 19th Century classic Democracy in America in his observation that the “soft” repression of democracy was unlike that in any other political form. It is impossible to deny that we in the US, the United Kingdom and Western Europe are experiencing just such a “gentle” drift of the kind that Tocqueville describes, losing our democratic integrity amid an increasingly “pretend” democracy. He explained: “[T]he supreme power [of government] then extends its arm over the whole community. It covers the surface of society …

Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen

Mathilde Cohen

Responsabilidad Civil, Libertad De Procreación Y Derecho De Nacer Sano, Leysser L. Leon

Leysser L. León

El autor analiza críticamente la acaso primera sentencia de la administración de justicia peruana en un caso de responsabilidad civil por "wrongful life". En particular, ante la desestimación ligera de las pretensiones, se cuestiona la ausencia de un fundamento técnico frente a la temática de derechos de la personalidad, tutela resarcitoria y remedios contractuales vinculados con la controversia específica (demanda de resarcimiento formulada por una persona que padece osteogénesis imperfecta).

The Concept Of Objectivity In The Uk Supreme Court Through A Comparative Looking Glass, Vito Breda

Vito Breda

This essay reports on the result of hermeneutical research entitled Objectivity in the UK Judicial Discourse. The concept of objectivity generates a plurality of analysis. For instance, in legal theory, MacCormick suggests the possibility of an objective interpretation of cases. Objectivity in the UK Judicial Discourse focuses on the interpretation of the concept by common law judges. In particular, the project sought to map out the cluster of interpretations (and arguments derived therefrom) on the concept of objectivity by the House of Lords and the UK Supreme Court. The result of the study shows that within UK law there …

„Zuerst Schlichten, Dann Richten“: O Modelo Suíço De Solução De Litígios Pré-Processual É Adequado Para O Brasil?, Nelson Rodrigues Netto

Nelson Rodrigues Netto

Dieser Aufsatz analysiert die Schlichtung und die Mediation in der Schweizerische Zivilprozessordnung.

Hans Kelsen And The Logic Of Legal Systems, Michael S. Green

Michael S. Green

No abstract provided.

Au Revoir, Will Contests: Comparative Lessons For Preventing Will Contests, Margaret Ryznar, Angelique Devaux

Margaret Ryznar

American probate law has not yet managed to prevent will contests and not every will executed will be ultimately upheld. The most common grounds for will contests are undue influence, testamentary capacity, and fraud. These will contests have significant costs, which include failing to give effect to testator’s intent and high litigation and decision costs. In fact, the most significant challenge that exists in American probate law today is the frequent inability to honor testamentary intent due to will contests brought by disgruntled relatives. On the other hand, a legal system that has nearly eliminated will contests on the grounds …

Prosecutors As Judges, Erik Luna, Marianne Wade

Erik Luna

No abstract provided.

Why Can't We Do What They Do? National Health Reform Abroad, Timothy Stoltzfus Jost

Timothy S. Jost

This article describes how other countries organize and finance their health care systems, and how the performance of those health care systems compares with that of the United States. It also examines why the United States, unlike all other developed countries, has failed to provide universal access to health care services.

Courtroom Drama With Chinese Characteristics: A Comparative Approach To Legal Process In Chinese Cinema, Stephen J. Mcintyre

Stephen J McIntyre

While previous “law and film” scholarship has concentrated mainly on Hollywood films, this Essay examines legal themes in Chinese cinema. It argues that Chinese films do not simply mimic Western conventions when portraying the courtroom, but draw upon a centuries-old, indigenous tradition of “court case” (gong’an) melodrama. Like Hollywood cinema, gong’an drama seizes upon the dramatic and narrative potential of legal trials. Yet whereas Hollywood trial films turn viewers into jurors, pushing them back and forth between the competing stories that emerge from the adversarial process, gong’an drama eschews any recognition of opposing narratives, centering instead on the punishment of …