Comparative and Foreign Law Commons^™

Introductory Note: A Perspective On Pakistan's Chief Justice, Judicial Independence, And The Rule Of Law, Joel A. Mintz

ILSA Journal of International & Comparative Law

On May 10, 2008, at our law school's graduation ceremony, Nova Southeastern University conferred an honorary Doctor of Laws degree on the Chief Justice of the Supreme Court of Pakistan, Iftikhar Muhammad Chaudhary.

Global Health Care Financing Law: A Useful Concept?, Timothy Stoltzfus Jost

Scholarly Articles

No abstract provided.

The Right To A Dignified Life (Vida Digna): The Integration Of Economic And Social Rights With Civil And Political Rights In The Inter-American Human Rights System, Jo M. Pasqualucci

UC Law SF International Law Review

The Inter-American Court of Human Rights recently issued a series of controversial judgments in which it held States accountable for violations of the right to life, even when no one had died. The Court expanded the traditional scope of the right to life to include the right to live a "vida digna" or a dignified life. In doing so, the Court has introduced a qualitative aspect to the right to life. In certain circumstances in which vulnerable individuals or groups lacked basic necessities such as adequate food, water, sanitary facilities, and health care, the Court held that the State was …

Symptoms Of Trauma Among Political Asylum Applicants: Don't Be Fooled, Stuart L. Lustig

UC Law SF International Law Review

Post-traumatic stress disorder (PTSD) is a psychiatric condition which is common among political asylum applicants. Symptoms include nightmares, flashbacks, avoidance of reminders of the trauma, emotional numbness, and hypervigilance. Many of these symptoms can adversely affect applicants' credibility in the courtroom in the eyes of adjudicators unfamiliar with PTSD. Due to PTSD symptoms, applicants may appear unexpectedly calm while recounting details of torture and maltreatment, and their narratives may seem inconsistent. Conversely, adjudicators should be aware of normal activities and functions that are possible among applicants with PTSD. Cultural variations in demeanor, such as reluctance to discuss sexual trauma and …

Why France Needs To Collect Data On Racial Identity... In A French Way, David B. Oppenheimer

UC Law SF International Law Review

French constitutional law, which embraces equality as a founding principle, prohibits the state from collecting data about race, ethnicity or religion, and French culture is deeply averse to the legitimacy of racial identity. France is thus, in American parlance, officially "color-blind." But in France, as in the United States, the principle of color-blindness masks a deeply colorconscious society, in which race and ethnicity are closely linked to discrimination and disadvantage. French law, and Frenchincorporated European law, requires the state to prohibit discrimination, including indirect discrimination. But in the absence of racial identity data, it is difficult for the state to …

Richard B. Lillich Memorial Lecture: New Directions In The Struggle Against Human Trafficking, Mark Sidel

Florida State University Journal of Transnational Law & Policy

No abstract provided.

"Rachel's Law" Wraps New York's Long-Arm Around Libel Tourists; Will Congress Follow Suit?, Justin S. Hemlepp

Florida State University Journal of Transnational Law & Policy

No abstract provided.

A Comprehensive Solution For A Targeted Problem: A Critique Of The Eu’S Home State Taxation And Ccctb Initiatives, Ilan Benshalom

Faculty Working Papers

This Article examines the European Commission's Home State Taxation and CCCTB initiatives. It argues that both proposals undermine the long-term objective of attaining a consolidated European corporate tax regime. It suggests an alternative strategy, which offers a comprehensive formulary-tax-allocation-solution in one of the hard to tax sectors, such as the financial sector. This strategy requires more efforts and political risk-taking, but would better promote the long-term objective of a consolidated EU corporate tax regime.

An edited version of this article is scheduled to be published in a future issue of European Taxation (an IBFD publication).

The Creation Of A Global Competition Regime. Where Exactly Do The Obstacles Lie–Practical Co-Operation Or Ideological Differences?, Mervyn Martin

Richmond Journal of Global Law & Business

There has been considerable interest in the creation of a global competition regime in the WTO since its conception. It is an issue that has always emerged in the forum’s agenda, and yet, more than ten years later, the international trading system has been unable to agree on a global competition framework. Notwithstanding the current agreement to hold any framework negotiations in abeyance to enable the Doha Round negotiations to proceed, two interesting conclusions can be drawn. First of all, that the agreement pertains only to negotiation related discussions and not discussions per-se on the issue of competition. This would …

Shared Dilemmas: Justice For Rape Victims Under International Law And Protection For Rape Victims Seeking Asylum, Lindsay Peterson

UC Law SF International Law Review

Rape is prohibited in every major domestic legal system and has long been a violation of customary international law, yet it is rarely prosecuted in either context. It was not until the 1990s, when women became actively involved in the international community through lobbying and occupying leadership positions, that the idea of rape as a crime against honor was reevaluated and modified to recognize rape as a violent crime. However, rape victims are still denied justice in many cases under international law and are denied protection from their attackers under U.S. domestic asylum law. This paper will examine the successes …

Center For Gender & Refugee Studies: The Implementation Of The One-Year Bar To Asylum, Karen Musalo, Marcelle Rice

UC Law SF International Law Review

Commonly referred to as the "one-year bar to asylum," section 208 (a)(2)(B) of the Immigration and Nationality, 8 U.S.C. § 1158(a)(2)(B) was enacted by Congress as part of the Illegal Immigrant Reform and Immigrant Responsibility Act passed in 1996. The law requires an asylum applicant to apply within one year of arrival in the United States, subject to certain exceptions. Congress' goal in enacting this law was to prevent fraud while ensuring that the United States remained a safe haven for refugees fleeing persecution in their home countries.

Twelve years after the enactment of the one-year bar, CGRS' survey of …

Cuban Claims: Embargoed Identities And The Cuban-American Oedipal Conflict (El Grito De La Yuma), Jose M. Gabilondo

Faculty Publications

No abstract provided.

Colombia's Incursion Into Ecuadorian Territory: Justified Hot Pursuit Or Pugnacious Error?, Luz E. Nagle

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Implied Powers Beyond Functional Integration? The Flexibility Clause In The Revised Eu Treaties, Carl Lebeck

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Prostituting Peace: The Impact Of Sending State's Legal Regimes On U.N. Peacekeeper Behavior And Suggestions To Protect The Populations Peacekeepers Guard, Alexandra R. Harrington

Florida State University Journal of Transnational Law & Policy

No abstract provided.

No End In Sight: The Effect Of The Boumediene Decision On Detainees Held By The United States At Guantanamo Bay, Cuba, Connie Kaplan

ILSA Journal of International & Comparative Law

Imagine that you are looking for a better life. You immigrate to a new country and fourteen years later you become a citizen.

The Need For Judicial Activism Acceptance Speech, Dr. Tariq Hassan

ILSA Journal of International & Comparative Law

Honorable President, Dean of the Shepard Broad Law Center, members of the faculty, respected students, distinguished guests, ladies and gentlemen.

Three Questions That Will Make You Rethink The U.S.-China Intellectual Property Debate, 7 J. Marshall Rev. Intell. Prop. L. 412 (2008), Peter K. Yu

UIC Review of Intellectual Property Law

Commentators have attributed China’s piracy and counterfeiting problems to the lack of political will on the part of Chinese authorities. They have also cited the many political, social, economic, cultural, judicial, and technological problems that have arisen as a result of the country’s rapid economic transformation and accession to the WTO. This provocative essay advances a third explanation. It argues that the failure to resolve piracy and counterfeiting problems in China can be partly attributed to the lack of political will on the part of U.S. policymakers and the American public to put intellectual property protection at the very top …

Modes Of Procedural Reform, Richard L. Marcus

UC Law SF International Law Review

Procedural reform seems to be a constant concern in most countries, but there are different modes of accomplishing it. One is to empower judges to develop their own rules of procedure. Another is to have a legislative body do so. A third is to borrow procedural regimes from another nation. And a final mode would be to leave procedural reform to a band of "experts" who can devise the preferred solutions to procedural problems. This paper provides an initial examination into whether the mode of procedural reform used influences the nature or aggressiveness of the reforms themselves. Drawing mainly from …

The Internationalization Of The American Journal Of International Law: Reality Or Chimera (A Survey), Christos Ravanides

UC Law SF International Law Review

In 2006 the American Society of International Law celebrated its centennial anniversary. In 2007 it is the turn of the Society's flagship publication, the American Journal of International Law, to celebrate its centennial volume. This first-of-its-kind detailed survey dissects the Journal's "international" attribute: how truly "international" and how "American" has this prestigious publication proved in the course of a century? How accommodating a host has it been to international lawyers with no U.S. affiliation or with 'deviating' views on international law? The research has been multi-fold; we examine the content, the structure and the thematology of the Journal, measuring foreign …

New Trends In Procedural Law: New Technologies And The Civil Litigation Process, Janet Walker, Garry D. Watson

UC Law SF International Law Review

This report for the International Association of Procedural Law examines the impact of new technologies on the litigation process in six countries: The United States, Australia, Israel, Singapore, England and Wales, and Canada. Drawing on national reports from each of these countries, it considers: how new technologies are re-shaping the ways that we record and store information in the litigation process; the ways that the participants in the process communicate with one another; and the ways in which the case record or file is developed. It also considers whether new technologies are making the litigation process more efficient, more accessible …

Implementing The Prohibition Of Torture On Three Levels: The United Nations, The Council Of Europe, And Germany, Joachim Herrmann

UC Law SF International Law Review

In the fight against terrorism the United States government has tried to draw a line between proper and improper methods of interrogation and treatment of detainees. The question whether and to what extent torture and other kinds of ill-treatment might be justified is widely discussed in the United States today. To date, no satisfying answer has been found. There is doubt that a generally accepted answer could ever be found. In view of this dilemma it might be helpful to look beyond the borders of the United States to see what answers have been given elsewhere. This paper will explain …

Peacekeeping In Name Alone: Accountability For The United Nations In Haiti, Matt Halling, Blaine Bookey

UC Law SF International Law Review

The period from February 29, 2004 - the day democratically elected President Jean-Bertrand Aristide was forced to leave his country - to the present has marked a dark period for Haiti. Thousands of men, women and children have been murdered, raped, and unlawfully detained. Peacekeeping forces of the United Nations Stabilization Mission in Haiti ("MINUSTAH"), sent to Haiti in an effort to reinstall democracy, are directly responsible for scores of these human rights violations through direct action and willfully blind inaction. This report attempts to demonstrate the magnitude of human rights abuses that have occurred and continue to occur in …

Sixty Years In The Making: The Definition Of Aggression For The International Criminal Court, Keith A. Petty

UC Law SF International Law Review

The post-war trials of Axis, war criminals marked the last time that the crime of aggression was prosecuted. Today, the Special Working Group on the Crime of Aggression (SWG) is nearing agreement on a definition that will likely be adopted by the Assembly of States Parties to the International Criminal Court (ICC) - a prerequisite to the Court's exercise of jurisdiction over this, particular offense. In spite of decades of work, several key issues remain to be resolved before the definition is finalized. These include: The level of involvement of the Security Council in determining when a State commits aggressive …

Balancing, The Global And The Local Judicial Balancing As A Problematic Topic In Comparative (Constitutional) Law, Jacco Bomhoff

UC Law SF International Law Review

Courts in Europe, North America and elsewhere frequently use the language of "balancing" when dealing with fundamental rights cases. In addition, judges and scholars increasingly often rely on the image of balancing, or "weighing," to draw (self-)portraits of legal cultures and to frame contrasts and similarities between legal orders. This article argues that this form of discourse occupies a particularly problematic position as a topic of comparative constitutional law, and this for two primary reasons.

First, while balancing references, as legal arguments, function primarily to justify the exercise of judicial power in particular - local - settings, their legitimizing force …

Recognition And Enforcement Of U.S. Punitive Damages Awards In Continental Europe: The Italian Supreme Court's Veto, Francesco Quarta

UC Law SF International Law Review

Once again, a European court denied the enforcement of a U.S. punitive damages award. Different actors, same outcome: punitive damages are deemed contrary to public policy in Europe, where the different national systems of civil liability do not seek punishment, but strict compensation. This article studies the developments of punitive damages within the United States, highlighting the anomalies that such doctrine carries with regard to both private and criminal law. Among the explicit goals of this study is the disclosure of the main (constitutional) hurdles which the Italian legal system poses to the judicial recognition of U.S. punitive damages awards. …

Extraterritorial Jurisdiction In Civil, Commercial, And Investment Matters, Anibal Sabater

ILSA Journal of International & Comparative Law

Extraterritorial jurisdiction can be defined as a government's ability to adjudicate disputes involving individuals who are located and/or events that have taken place in anotherjurisdiction, including acts and omissions of foreign officials.

Taxation As A Global Socio-Legal Phenomenon, Allison Christians, Steven Dean, Diane Ring, Adam H. Rosenzweig

ILSA Journal of International & Comparative Law

This essay makes a proposal that may not be controversial among those with a particular interest in international law, but may be less accepted among those primarily interested in tax law: that international social and institutional structures shape, and are shaped by, historical and contemporary domestic policy decisions.

The Ethical Trade In Cultural Property: Ethics And Law In The Antiquity Auction Industry, Kimberly L. Alderman

ILSA Journal of International & Comparative Law

This article considers from an ethical perspective the role that auction houses play as facilitators of the illicit antiquity trade

The Private Military Company-Unravelling The Theoretical, Legal & Regulatory Mosaic, Benedict Sheehy, Jackson N. Maogoto

ILSA Journal of International & Comparative Law

"Our economic analysis has disclosed the fact that it is only the interests of competing cliques of business men-investors, contractors, export manufacturers, and certain professional classes-that are antagonistic; that these cliques, usurping the authority and voice of the people, use the public resources to push their private interests, and spend the blood and money of the people in this vast and disastrous military game, feigning national antagonisms which have no basis in reality."'