Comparative and Foreign Law Commons^™

Changing The Current Policy Towards Spousal Abuse: A Proposal For A New Model Inspired By Jewish Law, Yuval Sinai, Benjamin Shmueli

UC Law SF International Law Review

Abuse in general, and within an ongoing, intimate relationship with a spouse in particular, is a scourge that the legal system must uproot. This paper examines two models that differ in their approach to the issue of spousal abuse (physical, sexual, and emotional): modern secular common law, as represented by two legal systems-American and Israeli law-and ancient, religious Jewish law. Thus, the paper offers an opportunity to see and analyze the dialogue between an ancient, religious legal system and its modern, secular counterparts, and the possible-perhaps surprising--contribution of the former to the latter.

The two models, secular common law and …

A Law Of No Gods, No Masters - Developing And Defending A Participatory Legal System, Matt Halling

UC Law SF International Law Review

This note develops and analyzes a new legal vision consistent with recent activist literature about a participatory society. A participatory society (in this note) consists of collectively owned property, a decentralized state, and attempts to maximize citizen participation in politics. Rather than nation states, society is structured as a federation of councils deliberating and coordinating with each other to solve political issues. Participatory society's structure demands a "participatory law" be developed to manage it, and this note attempts to develop the overarching features of such a system. Once the basic legal model is outlined, the article then looks for comparisons …

The End Of Peremptory Challenges: A Call For Change Through Comparative Analysis, Amy Wilson

UC Law SF International Law Review

Lawyers use peremptory challenges to create partial juries. United States Supreme Court precedent has shown the Court's willingness to limit some blatantly discriminatory uses of the right to peremptory challenges. However, the use of peremptory challenges in jury voir dire is inherently discriminatory. Merely limiting the use of peremptory challenges is not sufficient. This note discusses how jury selection is treated in the United Kingdom. The analysis is specifically focused on the abolition of peremptory challenges in the United Kingdom and uses the experience there to argue for an abolition of their use in the United States as well.

Addressing Judicial Activism In The Indian Supreme Court: Towards An Evolved Debate, Madhav Khosla

UC Law SF International Law Review

The Indian Supreme Court has invited a great deal of interest for its alleged activism and the role that it has begun to play in Indian governance. Recent years have been witness to substantial debate on the Court's functioning, with scholars positing views and raising concerns with considerable passion. This paper analyzes the judicial activism discourse in the Indian Supreme Court by focusing on the contributions of Professor Upendra Baxi. It argues that, despite the attention the Court has received on the question of judicial activism, the debate in this area has, for the most part, failed to engage with …

The Influences Of The West On The 1993 Russian Constitution, Victoria Schwartz

UC Law SF International Law Review

This article explores the influences of the West on the text of the 1993 Russian Constitution. Although previous scholarship has identified Western influences on the Russian Constitution, these works do not trace how or why the particular transplant occurred. This article has a descriptive and analytical, but not normative goal of filling that gap by explaining the transplants that occurred, and why and how they were made. Among its conclusions, the article finds that the choices made by the framers of the 1993 Russian Constitution can often be explained by the contemporaneous political situation within Russia. Part of the uniqueness …

Divine Judgment: Judicial Review Of Religious Legal Systems In India And Israel, Josh Goodman

UC Law SF International Law Review

This paper analyzes and compares how two democratic states, India and Israel, incorporate discrete areas of religious law into their secular legal systems. As religion has become an increasingly important political force in India and Israel, both countries have turned to constitutionalism and to civil courts to manage the role of religious law within the democratic system. This development represents the convergence of two global trends: an expansion in the power of courts and the growth of religious politics. This paper examines how the conflict of secular and religious legal norms has played out in the Israeli and Indian civil …

Reassessing The Dialogic Possibilities Of Weak-Form Bills Of Rights, Christine Bateup

UC Law SF International Law Review

In recent years, weak-form bills of rights have generated much excitement in contemporary constitutional scholarship because they are believed to create a new balance between parliamentary and judicial supremacy based on inter-branch "dialogue" between courts and legislatures. Few scholars, however, have examined the foundational question of whether judges and legislators can actually be expected to behave in a way that realizes the dialogic potential of weak-form instruments. This Article takes a new approach to this question, applying the insights of positive theory to engage in a comprehensive assessment of the behavior we can realistically expect of courts and legislatures in …

Mere Words: The Enemy Entity Designation Of The Gaza Strip, Carey James

UC Law SF International Law Review

Israel has occupied the West Bank and Gaza Strip since June of 1967. Despite the withdrawal of Israeli military forces and the dismantling of Israeli settlements in 2005, Gaza is still generally considered occupied territory as a matter of international law. In September 2007, Israel declared the Gaza Strip a "hostile territory." This note examines the probable aims and legal effects of the hostile territory designation.

China's Anti-Monopoly Law: Insights From U.S. And Eu Precedents On Abuse Of Dominance And Ip Exemption Provisions, Yin Zhou

UC Law SF International Law Review

Since opening to the global market in 1978, China has enjoyed consistent and rapid economic growth for the past three decades. Such liberalization and economic growth created a need for regulations to maintain a smoothly functioning market. By the mid-1990s, the need for a set of antitrust laws became apparent in light of the rise in domestic consumerism and investments from large foreign corporations. After thirteen years of drafting and revisions, China passed its Anti-Monopoly Law ("AML") on August 30, 2007. The AML came into effect a year later on August 1, 2008, but many companies started seeking legal advice …

What The Rest Think Of The West - Legal Dimensions, Laura Nader

UC Law SF International Law Review

No abstract provided.

Law Across Borders: What Can The United States Learn From Japan, Eric A. Feldman

UC Law SF International Law Review

No abstract provided.

Dream Palaces Of Law: Western Constructions Of The Muslim Legal World, Haider Ala Hamoudi

UC Law SF International Law Review

No abstract provided.

The Exceptional Nature Of Terrorism: The United States And Middle Eastern Legal Systems, Wadie E. Said

UC Law SF International Law Review

No abstract provided.

Duty Of Confidentiality In Korea, Suh-Young Shin

UC Law SF International Law Review

The duty of confidentiality is fundamental for the relationship between an attorney and the client. How and when the duty of confidentiality should be enforced upon an attorney has been debated in Korea, after a former in-house counsel of Samsung Group publicly disclosed that the chairman of Samsung allegedly engaged in illegal conduct. Relevant rules from the Korean Bar Association Code of Ethics and Conduct are not specific enough to allow one to assess the act of the former in-house counsel. This note analyzes the issue first under the Korean rules, and then under the relevant U.S. rules. While acknowledging …

The Right To A Fair Trial And The Confrontation Clause: Overruling Crawford To Rebalance The U.S. Criminal Justice Equilibrium, Lindsay Hoopes

UC Law SF International Law Review

In the United States, the right to confrontation is the hallmark fair trial protection. Most foreign and international jurisdictions have adopted the right to confrontation as an integral component of their fair trial protections, modeling the right after the U.S. Constitution's Sixth Amendment. Just as any other right, the right to confrontation requires society to strike a balance between a defendant's right to a fair trial with other competing rights in the criminal justice system: namely, victim's and society's right to adjudication of criminal matters.

Historically, the United States allowed abrogation of the right to confrontation when evidence was sufficiently …

Symbol Of Freedom: Atsa And International Efforts To Increase Security, Valerie Kraml

UC Law SF International Law Review

In 2002, the United States ("U.S.") p assed the Aviation and Transportation Security Act ("ATSA"), under the umbrella of the Patriot Act, which required the collection and dissemination of all international airline passengers' private data, such as name, address, credit card, before foreign airlines could pass over land on U.S. territories. Compliance with the ATSA was highly controversial in the European Union ("E.U."), which maintains strong domestic privacy and personal liberty laws. Efforts to bridge the conflict in domestic privacy laws have led to numerous attempts by the U.S. and E.U. to reach an agreement to increase international security within …

Agency Accountability Strategies After Liberalization: Universal Service In The United Kingdom, France, And Sweden, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.

Victims Of Armed Conflict And Persecution In South Africa: Between A Rock And A Hard Place, Edwin Odhiambo Abuya, Dulo Nyaoro

UC Law SF International Law Review

This paper examines the extent to which African States have cemented their commitments to protect persons forced to flee from their home states owing to armed conflict and/or persecution. Using South Africa as a case study, this paper examines the experience of refugees and asylum seekers at the hands of South African Police. Two central issues are, first, the identity documents that are issued to asylum seekers and refugees coming to South Africa, and second, the constitutional rights to privacy and security, which are promised to all. It is contended that although law enforcement officials are generally required by law …

Beyond Corporate Social Responsibility: Reconciling The Ideals Of A For-Benefit Corporation With Director Fiduciary Duties In The U.S. And Europe, Alissa Mickels

UC Law SF International Law Review

Traditionally, organizations are divided into three sectors: for-profit, non-profit, and the government. Over the past few decades, a new Fourth Sector of organizations has been emerging in the U.S. and abroad. These "Fourth Sector" organizations attempt to integrate social purposes with business methods as seamlessly as possible. A few social entrepreneurs take a more ambitious approach to this "hybrid" approach and are creating For-Benefit corporations that, in addition to integrating social purposes with business methods, adopt a corporate policy to benefit all stakeholders, require inclusive governance and ownership, accountability, and transparency. Will the law allow these For-Benefit corporations to benefit …

Eight Perspectives On Yvon Neptune V. Haiti, Jens Iverson

UC Law SF International Law Review

Yvon Neptune v. Haiti is a noteworthy decision of the Inter- American Court of Human Rights, with potentially wide-ranging impacts. The Court ordered a wholesale change in the Haitian prison system in order to prevent Haiti from violating former Haitian Prime Minister Yvon Neptune's rights again. Haiti violated Articles 1 (obligation to respect rights), 5 (humane treatment), 7 (personal liberty), 8 (fair trial) and 25 (the right to judicial protection) of the American Convention on Human Rights. Haitian and U.S. human rights groups worked together with a "virtual" human rights clinic to trigger the decision by filing a petition with …

Introduction - Recent Events In Gaza, Rose Mishaan

UC Law SF International Law Review

No abstract provided.

It's Just Business, Or Is It: How Business And Politics Collide With Sovereign Wealth Funds, Matthew Saxon

UC Law SF International Law Review

Over the past few years, sovereign wealth funds have played an increasingly important role in the global financial system. This note seeks to shed light on the foreign investment vehicles known as sovereign wealth funds (SWF's). In the first section I will explain what a sovereign wealth fund is; why regulators in the U.S. and European have recently become concerned with them; and how SWF's have reacted to these concerns. In the second section, I will compare and contrast the strategies that U.S. and European regulators have employed in adjusting to these funds. Finally, I will argue that lawmakers in …

Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.

Methods Of International Human Rights Adjudication: Towards A More Structured Decision-Making Process For The European Court Of Human Rights, Stefan Sottiaux, Gerhard Van Der Schyff

UC Law SF International Law Review

An international tribunal such as the European Court of Human Rights is often lauded for its protection of human rights. Yet, there is room for improvement. The Court's adjudication style would benefit from more structured balancing of competing interests. Not only would greater structure serve to enhance the Court's efficiency and promote legal certainty, but it would also help to clarify the Court's subsidiary role in relation to national authorities when it comes to the protection of human rights. In bringing more structure to the Court's decision-making process, inspiration can be drawn from the debate regarding the balancing/categorization continuum to …

In The Spirit Of Ubuntur. Enforcing The Rights Of Orphans And Vulnerable Children Affected By Hiv/Aids In South Africa, John D. Bessler

UC Law SF International Law Review

The author discusses the traditional African concept of ubuntu, which is frequently cited in South African jurisprudence, and analyzes South Africa's violation of the human rights of orphans and vulnerable children affected by HIV/AIDS. South Africa's Constitution explicitly protects children's rights and various socio-economic rights of concern to children. The Constitutional Court of South Africa has held such rights to be justiciable, yet the rights of South African children have continually been violated. The author discusses how the existence of these rights may assist orphans and vulnerable children as well as those advocating on their behalf, and identifies legal strategies …

International Law Versus The Preemptive Use Of Force: Racing To Confront The Specter Of A Nuclear Iran, Roxana Vatanparast

UC Law SF International Law Review

The United States claims that Iran's uranium enrichment program is for the purpose of creating nuclear weapons, and is thus in violation of the Treaty on the Non-proliferation of Nuclear Weapons. Although the question of whether Iran has, or will soon have, a nuclear weapon is still speculative, the U.S. is adamant that even if Iran does not currently have a nuclear weapon, it soon will, and all measures must be taken to prevent that from happening. This note analyzes whether the preemptive use of force in this context would meet traditional customary international law requirements as originally established in …

Fifteen Minutes Of Shame: The Growing Notoriety Of Grand Corruption, Mary Evans Webster

UC Law SF International Law Review

Today the international community is focused, like never before, on efforts to reduce corruption as an essential component of poverty eradication. Grand corruption is the payment of bribes in connection with major interactions such as large infrastructure projects or arms sales and the abuse of political power to extract and accumulate for private gain. In the last five years, the United Nations, the World Bank and the United States Agency for International Development have all launched aggressive new agendas to address the crime of grand corruption. But, these agendas are not without their shortcomings and ardent critics. This article explores …

Australian Shareholders Rejoice: Current Developments In Australian Corporate Litigation, Paul Von Nessen

UC Law SF International Law Review

This article considers recent Australian case law which will enhance the ability of Australian shareholders to pursue remedies against their companies for improper disclosure in relation to the acquisition of securities. The article further observes that, in contrast to the United States legal environment, actions which may be used to pursue such securities claims have been encouraged in Australia in recent years by the adoption of effective class action procedures and the relaxation of litigation funding rules.

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 …