Comparative and Foreign Law Commons^™

Article 9 Of The Japanese Constitution And The Rule Of Law, Kenneth L. Port

Cardozo Journal of International and Comparative Law

The article argues that Article 9 of the Japanese Constitution was originally intended to prevent Japan from maintaining any military forces, whether for offensive or defensive purposes. Despite this, Japan now has the fourth-largest military in the world, creating a contradiction between the Constitution's intent and current reality. The article contends that the Self-Defense Forces (SDF) are unconstitutional and proposes converting them into a disaster relief organization to align with the original pacifist vision of Article 9.

Jury Trials In Japan, Robert M. Bloom

ExpressO

The Japanese are seeking to involve their citizens in the judicial system. They are also establishing a check on the power of the judiciary. Towards these goals, they have enacted legislation to create jury trials. These remarkable ambitions envision adopting a mixed-jury system, slated to take effect in 2009. In this mixed-jury system, judges and citizens participate together in the jury deliberation.

This article first explores the differences between mixed-juries and the American jury system. It then suggests why the Japanese opted for a mixed-jury system. The article explores psychological theories surrounding collective judgment and how dominant individuals influence group …

The Deep Structure Of Law And Morality, Robin B. Kar

ExpressO

This Article argues that morality and law share a deep and pervasive structure, an analogue of what Noam Chomsky calls the “deep structure” of language. This structure arises not to resolve linguistic problems of generativity, but rather from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve social contract problems flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article argues that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor …

The Law And Culture Of The Apology In Korean Dispute Settlement (With Japan And The United States In Mind), Ilhyung Lee

Michigan Journal of International Law

This Article addresses the apology in civil dispute settlement in Korea, Japan's neighbor across the East Sea, using the U.S.-Japan comparative discussion as a helpful frame of reference. Part I provides the necessary background on the meaning of the apology and the leading commentary along the U.S.-Japan axis, beginning with the work of Wagatsuma and Rosett. Culture appears in this discussion in two regards. First, a question arises as to whether the very meaning of the apology as noted in the commentary reflects the U.S. cultural orientation, or instead has universal application. Second, some argue that cultural norms explain the …

Competing Values Or False Choices: Coming To Consensus On The Election Reform Debate In Washington State And The Country, Tova Andrea Wang

Seattle University Law Review

This Article examines the problems revealed in Washington State's election system as a result of its staggeringly close gubernatorial election, and compares such problems to those encountered by other states in the 2004 election. It examines the challenge of fixing these problems through the prism of the ongoing debate over what values and goals are most important when making election administration decisions. The various values and goals of expanding voter access, increasing voter participation and election efficiency, preventing voter fraud, ensuring the count of every vote, and creating finality in the voting system are included in this examination. Throughout this …

Partisanship Redefined: Why Blanket Primaries Are Constitutional, Deidra A. Foster

Seattle University Law Review

In 2003, the Ninth Circuit Court of Appeals rendered a decision that would pave the way for drastic changes in Washington State's election process. In Democratic Party of Washington v. Reed, the court held that Washington's nearly seventy-year-old blanket primary was unconstitutional, and the Supreme Court declined to review the case. The Ninth Circuit professed to be bound by California Democratic Party v. Jones, the Supreme Court case that ruled California's blanket primary unconstitutional just three years earlier, ignoring the argument that Washington's blanket primary differed materially from California's. What followed was a melee of voter disapproval and …

The Global Enforcement Of Human Rights: The Unintended Consequences Of Transnational Litigation, Andrea Boggio

History and Social Sciences Faculty Journal Articles

In the last few years, a growing number of individuals whose basic rights are violated have filed transnational human rights claims in foreign countries. By placing the individual as a holder of basic rights at the core of the process of development, the capability approach, as put forward by Amartya Sen and Martha Nussbaum, provides a fertile theoretical framework to assess translational human rights litigation.

The paper shows that transnational claims are problematic in two regards:

1) They undermine development by discouraging foreign companies from investing in countries that are sources of transnational claims and by weakening local governments and …

Is Hindsight 20-20? Reconsidering The Importance Of Pre-Constitutional Documents, Kirsten Matoy Carlson

Law Faculty Research Publications

Many constitutional orders, including the United States, have yet to determine the legal and political status of pre-constitutional documents written prior to the enactment of a final constitution. This article argues that pre constitutional documents should be critically analyzed by their respective constitutional communities. It maintains that pre-constitutional documents play a key role in constitutional orders by identifying conflicts that remain over time and contends that critical analysis of these documents facilitates deeper understandings of constitutional politics. It demonstrates how pre constitutional documents can be used as diagnostic tools for identifying and better understanding persistent constitutional tensions through a case …

Dispensing With The Public Interest Requirement In Private Causes Of Action Under The Washington Consumer Protection Act, Jonathan A. Mark

Seattle University Law Review

It has been more than eighteen years since the Washington Supreme Court handed down its landmark decision in Hangman Ridge Training Stables v. Safeco Title Insurance Company. This was the final decision in a string of cases in which the court attempted to resolve problems arising from the application and interpretation of the right to a private cause of action under Washington's Consumer Protection Act ("CPA"). This Article explores the application of the public interest requirement since the decision in Hangman Ridge and considers whether the tests devised by the Hangman Ridge court to determine public interest are still …

Sodomy And Prostitution: Laws Protecting The “Fabric Of Society”, Nicole A. Hough

The University of New Hampshire Law Review

[Excerpt] “Throughout history many people have viewed sodomy and prostitution as moral evils, because sex has often been linked to sin and, therefore, to immorality and guilt. For example, in ancient Hebrew, a sodomite was known as a qadhesh, a male temple prostitute who was associated with heathen deities and impure forms of worship. The female version of qadhesh, qedheshah, is translated directly as prostitute. This archaic view of labeling prostitution and sodomy as impure has been challenged over time, and both topics are still a source of great controversy. […]

This note is a comparative analysis of sodomy and …

A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris

ExpressO

Attempts to outlaw political groups that are alleged to approve the use of violence, to limit the expression of views that challenge the core values of democratic nation-states, and to ban radical, separatist, or religious political parties are more widespread in recent years than at any other time since 1945. They gave rise in the last few years to litigation in Constitutional Courts and Supreme Courts in Spain, Germany, Turkey, France, Israel, and Latvia, as well as in the European courts.

The present article tells the story of the encounter in the years 1959-1965 between the Pan-Arab national movement El …

Evaluating Work: Enforcing Occupational Safety And Health Standards In The United States, Canada And Sweden, Daniel B. Klaff

ExpressO

The United States’ occupational safety and health enforcement system is breaking down. Klaff argues that much of this breakdown has to do with a fundamental lack of worker participation in the United States’ safety and health system. Klaff makes his case by comparing and contrasting the history and enforcement schemes of the United States, Canada, and Sweden. After arguing for economic rights as human rights, Klaff concludes by offering a set of recommendations for the United States’ occupational safety and health system based upon his value-centered analysis.

Two Early Codes, The Ten Commandments And The Twelve Tables: Causes And Consequences, Alan Watson

Scholarly Works

Comments on the legal history of the ten commandments and the Roman Twelve Tables, and a comparison of the two legal collections. This paper also discusses the peculiarities in the traditions behind the collection of these laws; and the rules of behavior between humans covered by these laws.

China's Protection Of Famous And Well-Known Marks: The Impact Of China's Latest Trademark Law Reform On Infringement And Remedies, Alisa Cahan

Cardozo Journal of International and Comparative Law

The note examines China's efforts to enhance the protection of famous and well-known trademarks, particularly in light of its accession to the World Trade Organization (WTO) and its obligations under the TRIPs Agreement. It highlights the challenges China faces in aligning its trademark laws with international standards, including inconsistent enforcement, cultural attitudes toward intellectual property, and the impact of regional protectionism. Despite legislative reforms, such as the 2002 amendments to the Trademark Law and the Implementing Regulations, enforcement remains uneven, affecting both domestic and foreign trademark owners.

Law, Terrorism, And Social Movements: The Tension Between Politics And Security In Germany's Anti-Terrorism Legislation, Shawn Boyne

Cardozo Journal of International and Comparative Law

The article explores Germany's approach to combating terrorism from the late 1960s to the 1980s, emphasizing the interplay between security measures and civil liberties. It argues that political power struggles, rather than the terrorist threat itself, often drove antiterrorism legislation. The analysis highlights how laws such as the Berufsverbot and criminal code revisions were used to suppress dissent, leading to public backlash and eventual reforms. In contrast to the U.S., which framed its post-9/11 response as war, Germany maintained judicial oversight and avoided suspending constitutional rights. Public opinion played a pivotal role in shaping these policies, ultimately fostering a stronger …

The Roadmap For Failure: Israeli And Palestinian Discountenance And Misunderstanding, John J. Marciano

ExpressO

As tensions rise with the assassination of key Hamas figures, the situation in Israel and the Occupied Territories call out for committed, reasoned action. In the past, the peace process has consisted of half-hearted attempts to pacify both the Israeli and Palestinian populaces. This is exemplified by the recent Roadmap for peace, which was supported by the United States.

However, the lack of true dedication among the players has arguably resulted in crimes against humanity on both sides. The previous peace plans fail to recognize this, and have perpetuated the violence with cookie-cutter approaches that are not closely tailored to …

Fine Art Online: Digital Imagery And Current International Interpretations Of Ethical Considerations In Copyright Law, Molly A. Torsen

ExpressO

This writing explores the fast-changing intersection of law, technology and ethical considerations related to the visual arts. My paper explores differences in domestic intellectual property laws as well as regional considerations in moral rights law application.

Assisted Reproduction In Germany And The United States: An Essay In Comparative Law And Bioethics , John A. Robertson

ExpressO

No abstract provided.

The Continuing Showdown Over Who Should Regulate Amusement Attraction Safety: A Critical Analysis Of Why Fixed-Site Amusement Attraction Safety Should Remain State-Governed. , Chad Emerson

ExpressO

No abstract provided.

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 …

Leaving Money On The Table: Contract Practice In A Low-Trust Environment, Ruben Kraiem

ExpressO

Social capital – the level of trust inherent in a society – will affect the contracting practices that are considered standard, practical or fair. These practices in turn will help determine the parties’ positions as they approach their negotiation, how they will communicate, and what terms they will agree in any particular transaction. This is true not only for the small transaction, but also for large and complex deals. As a result, when operating in a low-trust environment, even sophisticated parties (who can bear the costs of tailoring an agreement to their particular case), will be prone to relinquish or …

Is The End Of The War In Sight: An Analysis Of Canada’S Decriminalization Of Marijuana And The Implications For The United States “War On Drugs”, Kara Godbehere Goodwin

ExpressO

Discussion of marijuana decriminalization efforts by Canadian government and comparison of United States/Canadian drug legislation and healthcare. Public policy justifications are discussed as well as medical marijuana and effects of drug use on the two countries' prison and healthcare systems.

Modernizing Muslim Family Law: The Case Of Egypt, Lama Abu-Odeh

Vanderbilt Journal of Transnational Law

he Author discusses the dynamics of family law reforms in modern Egypt as an instance of similar dynamics of reforms in other Muslim countries. The forces that push for reforms as well as those that try to limit them are also introduced.

The Author begins by describing the historical legal background shared by the vast majority of Muslim countries, including Egypt. An account of the general evolution of Islamic law-from a dominant system existing within an Islamic state to a subordinate system existing within an overall secularized legal system characterized by legal borrowing from European codes-is given. Islamic law has …

All The Lizards Stand And Say “Yes Yes Yes” : The Element Of Play In Legal Actions Against Animals And Inanimate Objects, Anna Pervukhin

ExpressO

Legal actions against non-humans (whether animals or objects) were once widespread. They were viewed seriously and undoubtedly served important social functions. This article considers the possibility that some of these actions may have been playful as well. Certain aspects of legal actions against animals and objects-- occasional moments of levity, a preoccupation with formal rules, and a strong emphasis on imaginative transformation-- suggest that these actions had elements of play. The possibility is worth considering for two reasons. First, it may shed some light on a practice that has perplexed and disturbed commentators for centuries. Second, an examination of play …

Civilization And The Two Faces Of Law: J. M. Coetzee's Waiting For The Barbarians, Sinkwan Cheng

Cardozo Law Review

No abstract provided.

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.

[Sjd Dissertation On Public Participation In South And North Korean Environmental Laws], Byungchun So

Dissertations & Theses

The primary aim of this thesis is to explore public participation in the environmental decision-making process for potential benefits in developing Korean environmental laws. Public participation contributes to sustainable development through effective environmental management; in addition, it improves accountability and transparency in the decision-making processes of governmental agencies as a complementary measure of direct and participatory democracy. Therefore, public participation is crucial not only to environmental protection but also to the development of democracy—two major concerns of Korea in the new Millennium.

Nietzsche And Socrates / Or The Spirit Of The Devil And The Law, Anthony Carty

Cardozo Law Review

No abstract provided.

Nietzsche's Gnosis Of Law, Frederick M. Dolan

Cardozo Law Review

No abstract provided.

2002, Rhetoric And Reality: Human Rights And The World Bank, Korinna Horta

CAO General 1999-Present

This statement by the World Bank in the context of its support for the largest private sector investment project in sub-Saharan Africa illustrates the problem in a nutshell. Can the world’s most powerful development agency achieve its goal of reducing poverty where political rights are repressed, where freedom of expression and discussion are absent and opposition forces are persecuted? This Article reflects a perspective drawn from the experience of Northern environmental organizations, such as Environmental Defense, which work closely with community groups, church groups, and development and human rights organizations as well as trade unions in many devel¬ oping countries. …