Law Commons^™

Consumers Want To Be In Europe; Corporations Want To Be In The U.S.: How To Reform Mandatory Consumer Arbitration Agreements To Be Fair To Both Parties, Kelly Parfitt

Kelly Parfitt

Arbitration is a popular method of resolving legal disputes between businesses. However, in the last few years, corporations have begun putting mandatory consumer arbitration agreements in small print on sales contracts and receipts for consumer goods, credit cards, and mortgages. Consumers are forced to pay fees much higher than court costs, depending on the case. An arbitrator will do hundreds of cases with the same corporations, be familiar with and even in some cases be affiliated with the corporation. This system results in the overwhelming majority of cases being won by corporations. But in the European Union, consumers are given …

International Commercial Arbitration And The Transformation Of The Conflict Of Laws Theory, Markus A. Petsche

markus a petsche

No abstract provided.

Down The Rabbit Hole: The Madness Of State Film Incentives As As "Solution" To Runaway Production, Adrian H. Mcdonald

Adrian H. McDonald

This working paper is a "sequel" to my first law review article on runaway productions called "Through the Looking Glass": Runaway Productions and "Hollywood Economics," published in The University of Pennsylvania Journal of Labor and Employment Law in August 2007.

Since 2007, there has been a race to the bottom as virtually every state has enacted significant, if not detrimentally generous, tax incentives to lure film and television production. The efficacy of these incentives is evaluated at length, with particular attention paid to the origin and implementation of tax incentives in California, Massachusetts and Louisiana - states with colorful backgrounds …

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 …

Gaiben & Bengoshi Llp: Cross-Border Legal Practice In Japan, Erich W. Struble

Erich W Struble

In 2005, reforms to Japan’s 1986 Foreign Lawyers Law became effective that permitted foreign law firms to fully merge with Japanese law firms. Several major international law firms immediately took advantage of this liberalization in order to provide more seamless and comprehensive service to their clients. Other international law firms chose not to fully merge with Japanese law firms, opting instead to remain in “joint venture” arrangements with Japanese firms or with individual Japanese bengoshi. Still other international law firms with a presence in Japan have decided to remain independent. After providing the necessary background, this Article explains why different …

Evaluation Of The Design Piracy Prohibition Act: Is The Cure Worse Than The Disease?, Silvia Beltrametti

Silvia Beltrametti

Abstract: Is the Design Piracy Prohibition Act a necessary addition to the Intellectual Property panorama of the United States? American designers and otherwise creative minds do not have any means to protect their innovative design creations because none of the existing intellectual property measures can be tailored to the protection of design rights. To explore this issue, I go back to the underlying reasons for prohibiting the trade of counterfeit goods and I argue that counterfeiting and design piracy are analytically similar and there is no reason justifying a different legal treatment, especially given the close interrelation of these two …

Down The Rabbit Hole: The Madness Of State Film Incentives As As "Solution" To Runaway Production, Adrian H. Mcdonald

Adrian H. McDonald

This working paper is a "sequel" to my first law review article on runaway productions called "Through the Looking Glass": Runaway Productions and "Hollywood Economics," published in The University of Pennsylvania Journal of Labor and Employment Law in August 2007.

Since 2007, there has been a race to the bottom as virtually every state has enacted significant, if not detrimentally generous, tax incentives to lure film and television production. The efficacy of these incentives is evaluated at length, with particular attention paid to the origin and implementation of tax incentives in California, Massachusetts and Louisiana - states with colorful backgrounds …

Public Interest Litigation In India: Overreaching Or Underachieving?, Varun Gauri

Varun Gauri

Public interest litigation has historically been an innovative judicial procedure for enhancing the social and economic rights of disadvantaged and marginalized groups in India. In recent years, however, a number of criticisms of public interest litigation have emerged, including concerns related to separation of powers, judicial capacity, and inequality. These criticisms have tended to abstraction, and the sheer number of cases has complicated empirical assessments. This paper finds that public interest litigation cases constitute less than 1 percent of the overall case load. The paper argues that complaints related to concerns having to do with separation of powers are better …

African Law In Comparative Law: Does Comparativism Have Worth?, Christian N. Okeke

Christian N Okeke

No abstract provided.

Prospective Of Foreign Prosecution History Estoppel In Korean Patent Litigation, Hyung Joon Lee

Hyung Joon Lee

This Article responds to an emerging view, in patent litigation, to employ foreign prosecution history estoppel as a doctrine in claim construction. In this regard, the United States Court of Appeals for the Federal Circuit (hereinafter, referred to as CAFC) has found a representation made during a patent litigation in Korea to be effective as a prosecution history estoppel in a U.S. patent infringement suit, i.e., AstraZeneca v. Andrx Pharmaceuticals (04-1562). This Article reviews the foundation of this decision, such as Doctrine of Equivalents and Prosecution History Estoppel. Subsequently, the present Article examines several important cases to analyze the applicability …

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.

Freeze-Outs: Transcontinental Analysis And Reform Proposals, Marco Ventoruzzo

Marco Ventoruzzo

One of the most crucial, but systematically neglected, comparative differences between corporate law systems in Europe and in the United States, as crucial as often neglected, concerns the regulations governing freeze-out transactions in listed corporations. Freeze-outs can be defined as transactions in which the controlling shareholder exercises a legal right to buy out the shares of the minority, and consequently delists the corporation and brings it private. Beyond this essential definition, the systems diverge profoundly.

This gap exists despite the fact that minority freeze-outs are one of the most debated issues in corporate law, in the public media, in a …

Solar Energy Policy In Canada: An Overview Of Recent Legislative And Community-Based Trends Towards A Coherent Renewable Energy Sustainability Framework, Kamaal Zaidi

Kamaal Zaidi

This paper outlines solar energy policy in Canada, in the hopes of advancing renewable energy policy. More specifically, the most recent advances in public policy relating to renewable energy are examined in selected provinces to show how solar energy is on the rise in Canada. The technology behind solar energy is briefly analyzed, while the legal aspects of solar energy are covered to build upon the discussion in various provinces. Since much of Canadian solar energy policy draws from Germany, Japan, and the United States, these three jurisdictions are mentioned to show their solar energy policies. The paper ends with …

Vietnam's Eligibility To Receive Trade Benefits Under The U.S. Generalized System Of Preferences, Alexander H. Tuzin

Alexander H. Tuzin

Last year, Vietnam officially requested to receive trade benefits under the U.S. Generalized System of Preferences (GSP) as a beneficiary developing country. The accompanying article initially examines the role of GSP programs within the WTO system, and then provides a comprehensive analysis of Vietnam’s prospects for receiving trade benefits under the U.S. GSP system. Vietnam remains a very poor country, and it could benefit considerably from preferential treatment under the U.S. GSP program. However, Vietnam’s compliance with the GSP eligibility criteria is problematic. In particular, Vietnam’s protections for both intellectual property rights and worker rights are inadequate. Ultimately, this article …

Listening To Indigenous Voices: What The Un Declaration On The Rights Of Indigenous Peoples Means For U.S. Tribes, Aliza G. Organick

Aliza G. Organick

When the UN Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly in September, 2009, it was heralded as a major victory for all of the world’s Indigenous Peoples, as well as international human rights. This remarkable effort took over two decades to come to fruition and recognizes that Indigenous Peoples worldwide continue to suffer from the dispossession of their lands and resources and that existing human rights documents did not do enough to protect those rights. The Declaration not only reaffirms the basic human rights recognized in the Universal Declaration on Human Rights, …

The Case Of Binyam Mohamed: National Security Or National Embarrassment?, Diane Webber

Diane Webber

This paper reviews the case of Binyam Mohamed, a British resident and former Guantanamo detainee. Mohamed’s case generated litigation in four different places: 1) proceedings in the military commissions court in Guantanamo Bay to try him under terrorist charges; 2) federal proceedings under an application for habeas corpus in the US District Court in Washington D.C.; 3) an application in the High Court in London where Mohamed’s lawyers sought disclosure of exculpatory material that the US had refused to provide to his US attorneys; and 4) a civilian litigation action under the Alien Tort Statute action in California in which …

“Ever Thine, Ever Mine, Ever Ours”? The European Union’S Common Foreign And Security Policy Expressed Through International Organizations., Ian Foss

Ian Foss

The European Union (EU) is perhaps the most successful example of multilateralism to date. Not only has the EU prevented the scourge of war from bloodying Europe’s soil since its inception as the European Coal and Steel Community, but it has also become one of the largest trading blocs in the world, promoter of Human Rights, and counterweight to United States hegemony. States are loath to give up their sovereignty, but remarkably, EU member states have been doing just that, albeit incrementally, since the 1950s. Recently, the EU has increased its action internationally; however, international relations realists balk at the …

How Do Local-Level Legal Institutions Promote Development?, Varun Gauri

Varun Gauri

This paper develops a framework and some hypotheses regarding the impact of local-level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal justice systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, though …

The Financial Crisis Of 2009 - Have Reorganization Proceedings In Emerging Markets Gone Bankrupt? Israel As A Case Study, David Hahn

David Hahn

The financial crisis of 2009 affected markets all over the world, presenting an unprecedented challenge for international regulators. In emerging markets, firms began raising significant amounts of debt through corporate bonds only in recent years. When such markets crashed, and firms could no longer pay bondholders, regulators were forced to adopt innovative policies to cope with the problem. This paper explores the possible regulatory responses to the crisis, by focusing on the actions taken by regulators in Israel. The paper outlines the various mechanisms that have been employed and offered to combat the crisis and highlights their shortcomings. It then …

Change Is Needed; How Latinos Are Affected By The United States Criminal Justice System, Christopher F. Bagnato

Christopher F. Bagnato

Latinos have been present in this country for centuries. They slowly have been making their mark in the communities of this country, usually seen but not really heard or noticed. Yet during the past thirty years the amount of Latino immigrants has skyrocketed. Census projections indicate that Latinos will be the biggest minority population in this county in the near future. The issues with discrimination of Latinos started on the streets with phrases like, “racial profiling” and “driving while brown,” and have moved into new places like the courtroom. Latinos have had to face not only the burden of prejudice …

The Final Frontier: Incorporating Aspects Of Culture And History In The Formation Of A Workable, Legal Framework For Outer Space, Brett S. Janos

Brett S. Janos

No abstract provided.

Harmonization Of International Legal Structure For Fostering Professional Services: Lessons From Early U.S. Federal-State Relations, Deth Sao

Deth Sao

In the current global marketplace, liberalization of trade in professional services (“services”) presents one of the biggest challenges and profitable opportunities for the international community. Changes in technology and state privatization polices over the past half century have made services the fastest growing sector in international trade. Despite such a transformation, the potential for further innovation and expansion in the services industries is in jeopardy. In response to public policy and regulatory concerns and political pressures to protect domestic jobs and industries, states have adopted a plethora of state-initiated discriminatory and restrictive policies against trade in services. Because existing international …

Rights, Rights Everywhere And Not A Fish To Fish: Considering Aboriginal And Treaty Rights In Canada As A Platform For Climate Change Litigation, Madeleine A. Sinclair

Madeleine A Sinclair

The very existence and identity of Aboriginal peoples is often tied inextricably to their lands and the natural resources they have depended on for so long are crucial not only for sustenance but also for cultural identity and spirituality. A complex legal regime and unique set of rights has resulted from efforts to reconcile this with the sovereignty of the Canadian crown. This paper aims to lay the foundations for an argument that, as holders of distinctive rights, Aboriginal peoples in Canada are uniquely positioned in a legal fight to force action on climate change.

This article examines aboriginal and …

The Fork In The Road After Strasbourg: Effective Remedy Or Moral Victory?, Riccardo De Caria

Riccardo de Caria

The article deals with the enforcement of judgments of the European Court of Human Rights in domestic systems, particularly focusing on the Italian law. After a historical background on European integration and Italy’s leadership role in this process (§ 1), it considers the main provision governing the matter, Art. 46 of the European Convention on Human Rights (that provides for the duty to “abide by the final judgment of the Court”), showing how the way this provision is construed influences European integration (§ 2). Next, the article considers Italy, that – unlike other States – has never allowed any form …

The Fork In The Road After Strasbourg: Effective Remedy Or Moral Victory?, Riccardo De Caria

Riccardo de Caria

The article deals with the enforcement of judgments of the European Court of Human Rights in domestic systems, particularly focusing on the Italian law. It starts with a historical background on European integration, highlighting the leadership role played by Italy in this process (§ 1). It then considers the main provision governing the matter, namely Art. 46 of the European Convention on Human Rights, that provides for the duty to “abide by the final judgment of the Court”, and shows how the way this provision is construed influences European integration (§ 2). After that, the article considers the Italian approach. …

To Have And To Hold, For Richer Or Richer: Premarital Agreements In The Comparative Context, Margaret Ryznar, Anna Stępień-Sporek

Margaret Ryznar

The premarital agreement, perhaps one of the world’s most unromantic documents, also happens to be quite powerful and complex. Although its most highly-publicized use has been to control post-divorce property division, the premarital agreement’s most significant importance is in its power to circumvent the statutory defaults governing spouses’ rights and responsibilities not only during divorce or death, but also during marriage. However, the enforceability of premarital agreements is subject to procedural and substantive review in the United States. Such agreements also raise universal public policy issues with regard to the meaning of fairness and the limits on freedom of contract. …

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

anna di robilant

This article deploys a comparative approach to question a widely-shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian “invention”, absent in the common law. Drawing on an influential strand of functionalist comparative law, the article identifies the “functional equivalents” of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late 19th and early 20th century in fields as diverse as water law, nuisance, tortious interference with contractual relations and labor law. The article investigates the reasons why …

A Troubled Path To Private Property: Agricultural Land Law In Russia, Ira Kenneth Lindsay

Ira Kenneth Lindsay

When the Soviet Union collapsed many observers hoped that decollectivization would improve the infamously inefficient Soviet agricultural sector and raise collective farm workers out of poverty. The initial results of market reform in Russian agriculture were a severe disappointment in both respects. Under Putin, Russia has finally allowed agricultural land to be bought and sold. The effects of this latest reform have been less than was hoped by supporters or feared by opponents. Russia’s experience with land reform suggests that while private ownership of farmland may offer significant advantages, successful land reform requires much more than the creation of legal …

No Longer A Vacuum, Corneliu Marian

Corneliu Marian

The article reviews the Scalia-Breyer debate on the use of foreign sources in three contexts. First, the article draws on the increasing interdependency between the American domestic judiciary and foreign legal institutions. By interpreting the Maher¬-case and the reaction of the Canadian judiciary, the author concludes that American jurisprudence may no longer operate on an isolationist basis. Second, the article draws on the Israeli debate on the use of torture in sensitive circumstances. The Israeli jurisprudence has a long-standing experience in interpreting when torture should be sanctioned. American jurisprudence will be improved if it directly discusses the strengths and weaknesses …

Corporate Scandals, Executive Compensation, And International Corporate Governance Convergence: A U.S.-Australia Case Study, Jacob Barney

Jacob Barney

The first decade of the 2000s began with a rash of large-scale corporate scandals touching every corner of the globe, and it draws to a close in the midst of a worldwide recession which, somewhat ironically, has brought to light gargantuan executive compensation packages, resulting in widespread public outcry. Given the global nature of these two sets of corporate crises, it stood to reason that there would emerge a universal movement to revise the laws and practices controlling executive compensation. However, the mere fact that such a movement has emerged does not mean that the response to this movement will …