Comparative and Foreign Law Commons^™

Memorial Address For Rudolf Schlesinger: Delievered At The University Of Trento Law School, Ulrich Drobnig

UC Law SF International Law Review

No abstract provided.

Comparative Law Scholarship, John Henry Merryman

UC Law SF International Law Review

No abstract provided.

The Common Core Of European Private Law And The Principles Of European Contract Law, Ole Lando

UC Law SF International Law Review

No abstract provided.

Comparative Analysis Of The United States Patent Law And The New Industrial Property Code Of Brazil, John Giust

UC Law SF International Law Review

Brazil promulgated a new Industrial Property Code in 1996 that significantly changed its patent law. In this Article, Mr. Giust compares the Brazilian statute to patent law in the United States. Through detailed analysis, the Article shows that despite the vastly different economic and social needs of both nations, the recent changes have actually brought the two patent systems closer together. As the author argues, this trend toward convergence reflects the two nations' commitment to the TRIPs Agreement, and to that extent, strongly supports the view that global patent harmonization is possible.

This Article's comparative analysis covers numerous aspects of …

Forum Selection Clauses In Maritime Bills Of Lading, Valerie Drogus

UC Law SF International Law Review

Courts face difficult issues in determining the validity of maritime forum selection clauses. This Note assesses the validity of such clauses in bills of lading used in maritime shipping. It considers four issues.

First, this Note will examine the three existing conventions on international maritime law. Second, it will discuss the varying U.S. court interpretations of the U.S. Carriage of Goods by Sea Act. Third, it sets forth the positions of other states on such clauses. Finally, this Note posits solutions and compromises for the existing conflicts of law.

Velvet Glove And Iron Fist: A New Paradigm For The Permanent War Crimes Court, David S. Bloch, Elon Weinstein

UC Law SF International Law Review

The international community is committed to the creation of a Permanent War Crimes Tribunal. The Tribunal's operating charter will most likely mirror the charters of the Yugoslav and Rwandan International War Crimes Tribunals, a model the authors argue is unsuccessful for several reasons. They believe the Yugoslav and Rwandan tribunals are largely a farce and have become mechanisms for major international war criminals to escape capital punishment.

This article proposes an alternative to the current Permanent War Crimes Tribunal as it is envisioned. The authors' alternative tribunal consists of four independent but interrelated panels: an Indictment Panel, Truth and Reconciliation …

Gendered Aspects Of Migration: Law And The Female Migrant, Joan Fitzpartick, Katrina R. Kelly

UC Law SF International Law Review

Although female migrants share common goals and concerns, the gendered aspects of migration have been largely ignored by legislators and policy makers. This is illustrated by the regulation of migration for the purpose of performing domestic labor (the "maid trade") and migration to export processing zones, two predominantly female migration streams. The aim of this article is to expose the ways in which the legal regulation of migration reproduces and exacerbates the social and cultural inequalities that dis-empower female migrants. It is concluded that legislators and policy makers at all levels must develop an awareness and a more sophisticated understanding …

The Issue Of European Civil Codification And Legal Scholarship: Biases, Strategies And Developments, Ugo Mattei

Faculty Scholarship

No abstract provided.

Introduction, Ugo Mattei

Faculty Scholarship

No abstract provided.

An Opportunity Not To Be Missed: The Future Of Comparative Law In The United States, Ugo Mattei

Faculty Scholarship

No abstract provided.

The Functions Of Trust Law: A Comparative Legal And Economic Analysis, Ugo Mattei

Faculty Scholarship

No abstract provided.

International Human Rights Law In United States Courts: Professor Riesenfeld's Contributions, Namoi Roht-Arriaza

UC Law SF International Law Review

No abstract provided.

Reconcilable Differences--The Interpretation Of Multilingual Treaties, Dinah Shelton

UC Law SF International Law Review

The practice of authenticating treaties in several languages has grown in recent decades as multilateral agreements are concluded in the six official languages of the United Nations or the corresponding number of official languages of other sponsoring organizations. Problems of translation errors, ambiguities, and deliberate differences lead to conflicts over the content of obligations and rights contained in the treaties. The Vienna Convention on the Law of Treaties provides some guidance to interpreting texts authenticated in several languages, but more effort is needed during negotiations to avoid discordant texts. In addition, the author proposes that greater recourse be had to …

Helms-Burton: The Canadian View, Kim Campbell

UC Law SF International Law Review

No abstract provided.

The Five Bases Of Extraterritorial Jurisdiction And The Failure Of The Presumption Against Extraterritoriality, Wade Estey

UC Law SF International Law Review

A nation can exercise two types of jurisdiction: territorial and extraterritorial. The exercise of extraterritorial jurisdiction elicits controversy because of possible international law conflicts. The United States applies a presumption against extraterritorial application of domestic law. However, the presumption of extraterritorial application ignores the propriety of its use.

This Note revises the presumption upon reviewing various statutory and case law applications of extraterritorial jurisdiction in the United States. This Note also proposes a new paradigm for proper use of extraterritorial jurisdiction. The new paradigm posits that the presumption against extraterritorial jurisdiction can be rebutted in five situations: (1) Nationality Jurisdiction, …

The Helms-Burton Act: Title Iii And International Claims, David Kaye

UC Law SF International Law Review

The Helms-Burton Act provides a right of action for U.S. nationals with Cuban property claims against those who "traffic" in such property. This Articles addresses whether Title III of the Act is consistent with principles of extraterritorial jurisdiction under international law.

Mr. Kaye describes the Cuban government's failure to abide by international law during its property confiscations in the period from 1959-61, and explains the Act's provisions to tailor a remedy for Cuban property claimants. In contrast to an OASIAJC opinion regarding Helms-Burton, Title III is consistent with international and domestic law on espousal, continuous nationality, the nature of claims …

Professor Rudolf B. Schlesinger, Charles D. Cramton

UC Law SF International Law Review

No abstract provided.

Professor Rudolf B. Schlesinger: An Affectionate Tribute, David I. Levine

UC Law SF International Law Review

No abstract provided.

Courts And The Creation Of A Spirit Of Moderation: Judicial Protection Of Revolutionaries In Argentina, 1863-1929, Jonathan M. Miller

UC Law SF International Law Review

Scholarship on Latin America has traditionally ignored the political role played by the judiciary. This gap may have some justification in the relative weakness of many Latin American judiciaries in recent decades, but leaves a serious void for understanding Latin American politics in earlier periods. This Article examines how the Argentine judiciary in the late nineteenth and early twentieth century protected the rights of government opponents who started armed uprisings with high political stakes. Far from acting as a tool of government oppression, the judiciary frequently challenged the government and placed sharp limits on its actions. The Argentine Supreme Court …

Legal Systems Of Regional Economic Integration, Stefan A. Riesenfeld

UC Law SF International Law Review

No abstract provided.

Is Codification In Decline, Stephen Mccaffrey

UC Law SF International Law Review

The International Law Commission of the United Nations is responsible for the codification and progressive development of international law. After some signal initial successes, the Commission has had difficulty producing products that are generally acceptable to states. This Article examines the reasons for this apparent decline and prospects for the future.

Copernican Revolution In Jurisprudence: In Loving Memory Of Rudolf B. Schlesinger, Mentor And Friend, Ugo Mattei

UC Law SF International Law Review

No abstract provided.

In Honor Of Stefan A. Riesenfeld, Lori Fisler Damrosch

UC Law SF International Law Review

No abstract provided.

Apples And Oranges--The Supremacy Clause And The Determination Of Self-Executing Treaties: A Response To Professor Vazquez, Khaldoun A. Baghdadi

UC Law SF International Law Review

No abstract provided.

The Nationality Of Claims Principle Of Public International Law And The Helms-Burton Act, Robert L. Muse

UC Law SF International Law Review

The Helms-Burton act is more than a vehicle for claimants of confiscated Cuban property; it seeks an international moratorium on investment in Cuba to force political change. This use of law to promote foreign policy objectives violates established principles of international law and is at odds with customary government policy.

Mr. Muse argues that the Act violates the nationality of claims principle by providing a right of action in federal courts to Cuban property claimants who were Cuban citizens at the time of confiscation. The vast majority of potential claimants under Title Ill were not U.S. citizens in 1959. Further, …

Judicial Review And Constitutional Stability: A Sociology Of The U.S. Model And Its Collapse In Argentina, Jonathan Miller

UC Law SF International Law Review

A basic trend toward review exercised by a judicial or quasijudicial organ is unquestioned in the modem world today. The most obvious reason for the rise of judicial review is that pluralist societies require a respected institution to resolve disputes over interpretation and application of the rules binding them together. Second, absence of a judicial arbiter risks the transformation of reasonable constitutional disagreements into festering political disputes which threaten the legitimacy of those in power. Third, pluralist societies require organs able to legitimate or disapprove fundamental change when faced with groups prejudiced by the changes.

Despite extensive scholarship on judicial …

United States-Brazil Bilateral Income Tax Treaty Negotiations, Richard Mitchell

UC Law SF International Law Review

Nearly fifty years of intermittent negotiations between the United States and Brazil have failed to produce an income tax agreement acceptable to both nations. Negotiations between the two nations have recently been renewed and the possibility of an acceptable bilateral income tax treaty appears promising. However, two difficult issues remain resolved. The first and traditional sticking point is tax sparing. Brazil would like to see the United States offer tax sparing. In addition, the taxation of fees for technical services has recently emerged as a source of disagreement between the two nations.

This Note will (1) argue that a U.S.-Brazil …

In Tribute, Richard M. Buxbaum

UC Law SF International Law Review

No abstract provided.

Federal Courts As Weapons Of Foreign Policy: The Case Of The Helms-Burton Act, John Yoo

UC Law SF International Law Review

The Helms-Burton Act's validity must be tested not only against principles of international law and the obligations of international trading agreements, but the statute's use of the federal judiciary. Although the Act may be consistent with jurisdictional principles and agreements such as GATT and NAFTA, it may force federal courts into a role ill-suited for U.S. national security policy and inconsistent with basic constitutional principles.

Professor Yoo argues that whether Helms-Burton violates international law is insignificant to domestic enforcement of Congressional foreign policy objectives. Further, the national security exceptions to GATT and NAFTA provide sufficient latitude to permit the Act's …

Fundamental Rights On The Infobahn: Regulating The Delivery Of Internet Related Services Within The European Union, Patrick G. Crago

UC Law SF International Law Review

The European Union (EU), and its Member States, is currently struggling with the question of if and/or how to regulate the rapidly expanding content and services available over the Internet, an international communications medium. Some Member States are unilaterally acting to regulate the delivery of Internet related services, while other Member States are still debating whether they should regulate. The EU continues to study the issue, proposing that the Member States cooperate together to resolve the issue.

This Note posits that as a result of the uniquely international nature of the Internet, and the cultural, political, and social issues its …