Comparative and Foreign Law Commons^™

Exporting Standards: The Externalization Of The Eu's Regulatory Power Via Markets, Anu Bradford

Faculty Scholarship

This Article examines the unprecedented and deeply underestimated global power that the EU is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Introducing the notion of “the Brussels Effect,” the Article shows how market forces alone are sufficient to convert EU standards into global standards. Without the need to use international institutions or seek other nations’ cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable “Europeanization” of many …

Global Experimentalist Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This article outlines the concept of Global Experimentalist Governance (GXG). GXG is an institutionalized transnational process of participatory and multilevel problem solving, in which particular problems, and the means of addressing them, are framed in an open-ended way, and subjected to periodic revision by various forms of peer review in light of locally generated knowledge. GXG differs from other forms of international organization and transnational governance, and is emerging in various issue areas. The Montreal Protocol on ozone-depleting substances is used to illustrate how GXG functions. The conditions for the emergence of GXG are specified, as well as some of …

A Reply To "Hollow Spaces", George A. Bermann, Jack J. Coe Jr., Christopher R. Drahozal, Catherine A. Rogers

Faculty Scholarship

This short essay responds to Chip Brower's thoughtful and meticulous critique of Tentative Draft No. 2 of the Restatement Third of the U.S. Law of International Commercial Arbitration. While we appreciate the concerns he raises, we disagree with the conclusions he draws both about the Restatement and the drafting process. We address here what we understand to be Professor Brower's major criticisms of the work.

Table Of Contents, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

This is the Table of Contents for volume 40, issue 1.

Table Of Contents, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

This is the Table of Contents for volume 40, issue 2.

Kidnappers Without Borders: An Epidemic In Need Of Global Solutions, Caroline Gray Mcglamry

Georgia Journal of International & Comparative Law

No abstract provided.

Table Of Contents, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

This is the Table of Contents for Volume 40, Issue 3.

The Liberty Of The Church: Source, Scope And Scandal, Patrick Mckinley Brennan

Working Paper Series

This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a …

Constitutional Borrowing As Jurisprudential And Political Doctrine In Shri D.K. Basu V. State Of West Bengal, Sam F. Halabi

Notre Dame Journal of International & Comparative Law

The discipline of comparative constitutional law today is focused in significant part on the study of how and why judges use foreign precedent. Scholars debate the propriety of using foreign precedent as “authority,” circumstances under which such use is consistent with democracy (or a product of democratization), and which constitutional traditions may derive the greatest benefit from comparison. While comparative law theorists have long reflected on, and struggled with, a standard disciplinary vocabulary to describe what judges do when they engage in “comparative constitutional law,” the existing scholarship generally distributes judges’ use of foreign precedent into one of three modes …

Volume 45:1 Expanding Online Universe, Shrinking Globe, Jamie Lynn Vanaria

University of Miami Inter-American Law Review

No abstract provided.

“Turn On The Lights” -Sustainable Energy Investment And Regulatory Policy: Charting The Hydrokinetic Path For Pakistan, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Conscientious Objection Of Health Care Providers: Lessons From The Experience Of The United States, Soledad Bertelsen

Notre Dame Journal of International & Comparative Law

In recent years, legislation and regulations in different countries of the world have raised questions about the conscientious objection of health care providers. In Spain, the Sexual and Reproductive Health and Voluntary Interruption of Pregnancy Act of 2010 (Sexual and Reproductive Health Act) recognizes the right to conscientious objection of professionals directly involved in the termination of pregnancy but also expands the possibility to perform abortions in relation to previous legislation. The application of the conscientious objection clause, however, leaves multiple questions open, and both the administration and the judiciary have reached different conclusions in its interpretation. The discussion about …

Towards A Network Of Marine Protected Areas In The South China Sea: Legal And Political Perspectives, Hai Dang Vu

PhD Dissertations

The once pristine and rich marine environment of the South China Sea is degrading at an alarming rate due to the rapid socioeconomic development of the region. Despite this, and because mainly of complicated sovereignty and maritime boundary disputes, coastal States have not been able to develop effective regional cooperation to safeguard the shared marine environment. This dissertation, “Towards a Network of Marine Protected Areas in the South China Sea: Legal and Political Perspectives”, researches legal and political measures to support the development of a network of marine protected areas in the South China Sea. Such a network, if properly …

Targeting And The Concept Of Intent, Jens David Ohlin

Cornell Law Faculty Publications

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively …

Toward A Jurisprudence Of Free Expression In Russia: The European Court Of Human Rights, Sub-National Courts, And Intersystemic Adjudication, Robert B. Ahdieh, H. Forrest Flemming

Faculty Scholarship

Protection of free expression in Russia is headed the wrong direction, but one institution may still be able to slow its backward slide: the Russian judiciary. In particular, sub-national courts-those operating at the ground level-have the potential to shape a renewed jurisprudence of free expression in Russia. To encourage as much, the European Court ofHuman Rights (ECHR) should engage the Russian courts in a pattern of "intersystemic adjudication, "pressing them to embrace ideas about the role of courts, the law, human rights, and free expression more in line with international norms. Hopefully, this can reverse Russia's current path toward the …

Inter-Country Adoption And The Special Rights Fallacy, James G. Dwyer

Faculty Publications

No abstract provided.

Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Mckinley Brennan

Working Paper Series

This paper argues that questions about "religious freedom" must be subordinated to the fundamental principle of the liberty of the Church, libertas Ecclesiae. The First Amendment's agnosticism with respect to the liberty of the Church is not ultimately normative. Catholics and others who merely seek religious "accommodation," as with the HHS mandate, for example, are agents of a status quo that illegitimately has comfortable self-preservation as its highest value. It is Catholic doctrine that "creation was for the sake of the Church," not for the sake of, say, religious freedom. The paper argues that the contingent constitution of …

International Cryptography Regulation And The Global Information Economy, Nathan Saper

Northwestern Journal of Technology and Intellectual Property

With the meteoric rise of the Internet and e-commerce in the 1990s came great attention to the problems and opportunities associated with cryptography. Throughout that decade, the United States and many foreign countries debated and experimented with various forms of cryptography regulation, and attempts were made at international harmonization. Since then, however, policy-making activity around cryptography has slowed, if not halted altogether, leaving individuals and companies to face a bewildering array of regulations—or, in many cases, to face regulations that are extraordinarily unclear and haphazardly applied.

This Note seeks to introduce the reader to the issue of international cryptography regulation …

Hollow Spaces, Charles H. Brower Ii

Law Faculty Research Publications

No abstract provided.

Putting The Cisg Where It Belongs: In The Uniform Commercial Code, Kina Grbic

Touro Law Review

No abstract provided.

Investor-State Contracts, Host-State “Commitments” And The Myth Of Stability In International Law, Lise Johnson, Oleksandr Volkov

Columbia Center on Sustainable Investment Staff Publications

A new de facto rule has emerged in international investment law that emphasizes and prioritizes investment stability, imposing liability on host governments for a wide range of public interest measures deemed to interfere with “commitments” given to foreign investors by host governments. The arbitral decisions from which this new rule has emanated in treaty-based investment disputes resolve types of claims that have long been familiar to domestic jurisdictions. Yet, as this article uncovers through a comparative law analysis of factually similar cases decided under United States law over roughly the past 200 years, the approaches taken and pronouncements issued by …

In The Middle: Creating A Middle Road Between U.S. And Eu Data Protection Policies, Carolyn Hoang

Journal of the National Association of Administrative Law Judiciary

The first section of this paper examines the historical differences that have led to the American approach to privacy and the European approach to privacy. The second section will examine the current U.S. model, and the third section will examine the EU model. Next, the fourth section will compare and contrast the two models. Finally, the last section will argue that the U.S. should have a regulatory agency and describe how that should look and run.

The Business Exemption Of § 110(5) Of The Copyright Act Violates International Treaty Obligations Under Trips: Will Congress Honor Its Commitments?, Charles Leininger

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

In The Interests Of Justice: Human Rights And The Right To Counsel In Civil Cases, Martha F. Davis

Touro Law Review

This report examines the international human rights treaties binding on the United States as well as other non-binding international human rights documents to ascertain the status of the right to counsel in civil cases, the so-called "Civil Gideon" right. The United Nations treaty monitoring bodies responsible for the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination have both indicated that legal assistance may be required to ensure fairness in civil cases. The Charter of the Organization of American States, to which the United States is a party, goes farther …

Islamic History & Al-Qaeda: A Primer To Understanding The Rise Of Islamist Movements In The Modern World, Andrew M. Bennett

Pace International Law Review Online Companion

A decade following the 9/11 attacks, the objectives and motivations of Osama Bin Laden and Al-Qaeda remain largely unknown to the American public. Since the mission of Al-Qaeda is embedded in its interpretation of the history and traditions of Islam, increased analysis on the intellectual framework of Al-Qaeda provides valuable insight into this dangerous ideology that will remain a strategic threat to the United States for the foreseeable future. While more recent successes against the Al-Qaeda organization have encouraged talk of “the end of Al-Qaeda,” the broader ideology remains alive and well. The rise in support for the Islamist groups …

The Expansion Of Trademark Rights In Europe, Irina Pak

IP Theory

No abstract provided.

Book Review: "Die Gemeinfreiheit: Begriff, Funktion, Dogmatik (The Public Domain: Concept, Function, Dogmatics)" By Alexander Peukert, Marketa Trimble

Scholarly Works

The reviewer considers a recent book by Alexander Peukert, the professor of civil and commercial law who specializes in international intellectual property law at Goethe University in Frankfurt am Main, Germany. Peukert has devoted the book to defining the limits of the public domain – the realm of intellectual activity in which works are free for anyone to use because the works are not protected by intellectual property rights, are protected but the protection has expired, are subject to an exception to the rights under the law, or are unprotected because the owner of the rights chooses not to enforce …

Ecuador’S Decision To Grant Asylum To Julian Assange : The Manifestation Of Human Security?, Atik Kusriyati

Indonesian Journal of International Law

Ecuador’s decision to grant asylum to Julian Assange (Australian citizen) on August 16, 2012 has caused several impacts. Julian Assange, the founder of WikiLeaks, was arrested in Britain in connection with a Swedish investigation into accusations of sexual offenses. But United States Law enforcement official said that the fact that he was in custody did not affect their deliberations about whether he might be charged in this country in connection with publication of leaked government documents. Being disappointed with the decission, the British authorities sent a written notice to the Ecuador’s Embassy in London that they would assault the Embassy …

Prosecuting Those Bearing Greatest Responsibility: The Lessons Of The Special Court For Sierra Leone, Charles C. Jalloh

Articles

This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence "to prosecute those who bear the greatest responsibility" for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the …

Explaining The Progression Of The Rights Of Same-Sex Couples In South America, Daniel De La Cruz

San Diego International Law Journal

A trend of rights advocacy has recently developed in the international community. Organizations dedicated to the principle of advancing the rights of historically under-represented and oppressed social groups have proliferated around the globe. The growth of the gay rights movement in recent years has resulted in the expansion of civil liberties afforded to same-sex couples. The movement has gained significant success in symbolic expression. Even without much knowledge of the movement, one typically associates a rainbow flag, the Greek letter lambda, and the word “pride” with the effort. Unfortunately, the movement has not achieved comparable substantive success. Same-sex couples continue …