Comparative and Foreign Law Commons^™

The Case Of The Little Yellow Cuban Biplane: Can Interest Analysis Reconcile Conflicting Provisions In Federal Statutes And International Treaties?, Diane Lourdes Dick

Faculty Articles

This article analyzes conflicts that arise under international agreements that define and protect foreign ownership interests in civil aircraft, on the one hand, and domestic laws that allow Americans to bring suit against state sponsors of terrorism, on the other hand. Finding that courts often perform concealed interest analyses under the guise of mechanical application of canons of construction, this article recommends a comparative impairment interest analysis approach to resolving this and related conflicts.

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Faculty Scholarship

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

The Hollowness Of The Harm Principle, Steven D. Smith

University of San Diego Public Law and Legal Theory Research Paper Series

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

Generic Constitutional Law, David S. Law

University of San Diego Public Law and Legal Theory Research Paper Series

This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that …

Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis

ExpressO

Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes.

This article explores …

Free Exercise Of Religion In Germany And The United States, Edward J. Eberle

Law Faculty Scholarship

In this Article, Professor Edward Eberle provides a comparative overview of constitutional safeguards affecting religious freedom in Germany and the United States. Specifically the author analyzes the German and American approaches to the free exercise of religion within their respective constitutional systems. The result is an illuminating exposition that provides much insight for comparative and constitutional scholars.

In the years following the Second World War, religious freedoms in Germany developed along similar, individualist paths to those found in the United States Constitution. However, unlike the Constitution, the Basic Law's provisions touching on religious liberty are detailed and quite elaborate and …

The Battle To Establish An Adversarial Trial System In Italy, William T. Pizzi, Mariangela Montagna

Michigan Journal of International Law

This Article is intended to bring the U.S. legal community up to date on the attempt in Italy to put in place a more accusatorial trial system. The Article is divided into three sections. Section I describes the central provisions of the Code of Criminal Procedure that was adopted in 1988. It shows that a close look at the Italian system reveals that it was never intended to be an exact model of either the U.S. or English trial systems, because it always contained central features that are found in civil law systems on the continent. Rather, the changes in …

Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr.

Michigan Journal of International Law

This Article asserts that judicial exchange rather than dominance has inherent advantages as a technique for evolving a global legal culture. For insight into the global task, the Article looks first at an internecine struggle within the continental system. For further background, it describes how the U.S. Supreme Court has accommodated deviations from the basic legal model in U.S. administrative law as well as other internal U.S. legal systems. The supranational tribunals in the European setting and U.S. Supreme Court have shown the capacity to engage in dialogues over diverse legal philosophies. These experiences demonstrate the advantages of a mix …

Transitional Justice: The Un And The Sierra Leone Special Court, Richard S. Williamson

Cardozo Public Law, Policy & Ethics Journal

The article explores the role of transitional justice in post-conflict societies, with a focus on the United Nations' efforts to address war crimes and promote reconciliation. It highlights the establishment of the Sierra Leone Special Court and the Truth and Reconciliation Commission as key mechanisms for accountability and healing. The article argues that transitional justice is essential for national reconciliation, democracy, and long-term peace, emphasizing the importance of balancing justice with the need to avoid destabilizing fragile post-conflict societies.

Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson

ExpressO

A timely piece proposing solutions for issues certain to be raised in the upcoming trials of the accused Taliban and Al Qaeda operatives captured in Afghanistan and detained on a U.S. military base in Cuba. In the article, I begin by examining the history and jurisdiction of Article I and Article III courts and then address the history and structure of the Al Qaeda and Taliban regimes. After considering the Constitution, federal statutes, politics, and geographical limitations, I conclude that Al Qaeda detainees should be tried in Article III courts under terrorism statutes and Taliban detainees, as military combatants, should …

The Oral Judgment Practice In The Canadian Appellate Courts, J. E. Côté

The Journal of Appellate Practice and Process

No abstract provided.

Alternative Forms Of Judicial Review, Mark Tushnet

Michigan Law Review

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …

Comparative Constitutionalism In A New Key, Paul W. Kahn

Michigan Law Review

Law is a symbolic system that structures the political imagination. The "rule of law" is a shorthand expression for a cultural practice that constructs a particular understanding of time and space, of subjects and groups, as well as of authority and legitimacy. It is a way of projecting, maintaining, and discovering meaning in the world of historical events and political possibilities. The rule of law - as opposed to the techniques of lawyering - is not the possession of lawyers. It is a characterization of the polity, which operates both descriptively and normatively in public perception. Ours, we believe, is …

Approaches To Statutory Interpretation And Legislative History In France, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

Duty Of Care To The Intoxicated: The Irish Approach, Mary Drennan

San Diego International Law Journal

This Article examines whether the relationship between publican and patron should or should not produce such an obligation. It also addresses the possible defenses to such a claim in the tort of negligence. Finally, as the matter is not a settled point of Irish law, this Article also attempts to assess the potential approach of its courts, in view of the approach taken by the English courts to the issue and the flurry of academic comment in the wake of a recent Irish settlement. These issues are certain to surface in litigation again. Regardless of the approach taken by the …

Trademark Distinctiveness In A Multilingual Context: Harmonization Of The Treatment Of Marks In The European Union And The United States, Eric E. Bowman

San Diego International Law Journal

This Comment will examine the similarities and differences between the trademark protection laws with regard to the multi-cultural nature of the consuming public of the European Union and that of the United States, and then will recommend ways in which the laws can be harmonized to promote the congruent development and expansion of economic activities globally. This harmonization is necessary in light of the interplay between these schemes for protection of marks and the protection provided under the Paris Convention for the Protection of Industrial Property, the Madrid Agreement Concerning the International Registration of Marks, and the Madrid Protocol. The …

Lay Participation In Legal Decision Making: Introduction To Law & Policy Special Issue, Valerie P. Hans

Cornell Law Faculty Publications

United States scholarship on lay participation revolves around one predominant form of lay participation, the jury (Hans & Vidmar forthcoming 2004). However, in the legal systems of many countries, laypeople participate as decision makers in other ways. Laypersons serve as judges (Provine 1986), magistrates (Diamond 1993), and private prosecutors (Perez Gil 2003). Lay and law-trained judges may also decide cases together in mixed tribunals (Kutnjak Ivkovi6 2003; Machura 2003; Vidmar 2002). Although diverse in structure, these methods share with the jury a set of animating ideas about lay involvement in legal decision making.

Many of these ideas appear to be …

Envisioning A Global Legal Culture, Charles H. Koch Jr.

Michigan Journal of International Law

To encourage all, but particularly U.S., lawyers to think about transformation of the law, this Article will envision a global legal regime. The purpose is more reflective than predictive. Nominally, the Article has three parts. The first Part offers an overview description of the emerging supranational legal institutions and the major forces moving them. The next Part will outline civil law legal concepts and provide background for common law readers. To further the goal of this Article, it will do so as it suggests some issues that will arise as the civil law system is incorporated into the global legal …

Foreign Judgments In American And English Courts: A Comparative Analysis, Brian Richard Paige

Seattle University Law Review

Part II of this Comment provides some background on the current American scheme of foreign judgment recognition and enforcement by comparing and contrasting its three major components American common law, the Restatement (Third) of Foreign Relations Law, and the Uniform Foreign Money-Judgments Recognition Act. Part III tracks the English scheme of foreign judgment recognition and enforcement from its common law origin to its more sophisticated and streamlined foreign judgment registration system. Finally, Part IV suggests that the United States could benefit from the implementation of federal legislation that would bring foreign judgment registration procedures to American courts and provide for …

Democracy, Judicial Review And The Rule Of Law In The Age Of Terrorism: The Experience Of Israel - A Comparative Perspective, 31 Ga. J. Int'l & Comp. L. 493 (2003), Ralph Ruebner

UIC Law Open Access Faculty Scholarship

No abstract provided.

Approaches To Statutory Interpretation And Legislative History In France, Claire M. Germain

UF Law Faculty Publications

In France, Justice Jackson's question about where to look for the meaning of a statute would be phrased in broader terms and would not be limited to the question of whether to look only at the words of a statute or also at the legislative intent. French law starts from the premise that statutes and codes are the foundations of the legal system in the same way that cases are the foundation of the common-law system. Because of the primacy of written law in France, statutory interpretation lies at the heart of French law. Statutory interpretation is very flexible, and …

The Supreme Court Of Canada: Its History, Powers And Responsibilities, Frank Iacobucci

The Journal of Appellate Practice and Process

No abstract provided.

Judiciary School: A Proposal For A Pre-Judicial Ll.M. Degree, Marc T. Amy

Journal of Legal Education

No abstract provided.

The Draft Hague Convention On Jurisdiction And Enforcement Of Judgments And The Internet-A New Jurisdictional Framework, 36 J. Marshall L. Rev. 223 (2002), Kristen Hudson Clayton

UIC Law Review

No abstract provided.

Recognition And Enforcement Of Foreign Judgments In The United States: The Need For Federal Legislation, 37 J. Marshall L. Rev. 229 (2003), Violeta I. Balan

UIC Law Review

No abstract provided.

A Common Private Law For Europe, Alan Watson

Scholarly Works

A satisfactory private law for Europe is not primarily to be sought for in the most common solutions, themselves the result of borrowing. Nor in established rules, themselves the result of longevity, and lack of governmental incentive in innovating. Nor should it be sought in intermediate positions of various mixed systems, themselves the results of the features just above described. Rather it is to be found in the need for authority. This means that a common law for Europe requires the acceptance of a uniform system of adjudicating differences within a standard framework of the necessary sources of law. Authority …

U.S. Jury Reform: The Active Jury And The Adversarial Ideal, Valerie P. Hans

Cornell Law Faculty Publications

In many countries, lay people participate as decision makers in legal cases. Some countries include their citizens in the justice system as lay judges or jurors, who assess cases independently. The legal systems of other nations combine lay and law-trained judges who decide cases together in mixed tribunals. The International Conference on Lay Participation in the Criminal Trial in the 21st Century provided useful contrasts among different methods of incorporating lay voices into criminal justice systems worldwide. Systems with inquisitorial methods are more likely to employ mixed courts, whereas adversarial systems more often use juries. Research presented at the Conference …

Citizen Participation In Judicial Decision Making: Juries, Lay Judges And Japan, Richard O. Lempert

Articles

In the late 1920s and 1930s Japan had a jury system. It was suspended in 1943 as a wartime measure, but it had fallen into desuetude long before that. Arguably it was like the Spanish jury, which has several times risen during periods of relative political liberalism or populism and been suppressed during periods of militarism and autocracy. That is, it may be more than a coincidence that use of the Japanese jury fell precipitously during the 1930s as militarism took hold of the Japanese nation. Now the reinstatement of the Japanese jury is again being seriously considered. Similarly it …

Freedom Of Religion In The Case Law Of The Spanish Constitutional Court, Javier Martinez-Torron

BYU Law Review

No abstract provided.

Chinese Population Transfer In Tibet, John S. Hall

Cardozo Journal of International and Comparative Law

The note examines the impact of China's population transfer policies in Tibet since the 1950 invasion, arguing that these policies have led to the marginalization of Tibetans, significant environmental degradation, and human rights abuses. It explores various legal and diplomatic strategies to address these issues, including the Dalai Lama's Five Point Plan, human rights law, environmental law, and international negotiations.