Comparative and Foreign Law Commons^™

Tres Vidas, Una Guerra Rafael Iznaga, Bárbara Pérez Y Gregoria Quesada Entre La Emancipación Y La Ciudadanía, Rebecca Scott

Book Chapters

In this article, Scott takes a microhistorian approach as she looks at the ways in which three Cubans of color (Rafael Iznaga, Bárbara Pérez and Gregoria Quesada), from the same rural neighborhood, sought to define and attain citizenship during and immediately after the Cuban War of Independence from 1895-1898. Juxtaposing oral and written sources, Scott shows how such evidence can be both complementary and contradictory, and how each source should be examined in light of the others.

Rafael Iznaga fought in the war as a soldier of the Liberation Army, and returned with prestige and status. While his life can …

Internationalization Of Labor Disputes: Can Adr Mechanisms Help?, Theodore J. St. Antoine

Book Chapters

My task is to assess the ways in which ADR procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without invoking the decision-making power of the state or another sanction-imposing body. Both mediation and arbitration are included among such methods. In mediation, the neutral aims for the parties to agree on a mutually acceptable solution. In arbitration, the neutral imposes a solution after presentations by the contending parties. A third term - conciliation - is sometimes used and generally …

Adr Without Borders, Theodore J. St. Antoine

Articles

My task is to assess the ways in which alternative dispute resolution procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without involving the decision-making power of the state or other sanction-imposing body. Both mediation and arbitration are included. In mediation the neutral seeks to get the parties to agree on a mutually acceptable solution. In arbitration the neutral imposes a solution after presentations by the contending parties. A third term, conciliation, is sometimes used and generally connotes a …

Review Of Explaining The English Revolution: Hobbes And His Contemporaries, Donald J. Herzog

Reviews

The explosion of primary texts from seven- teenth-century England continues to trigger an explosion of scholarly treatments today. For good reason, too: Lots of the primary texts are amazing, and not just those tired old warhors- es, Hobbes's Leviathan and Locke's Second Treatise. As fun and challenging as the primary texts are, you are forgiven a touch of skepticism if you wonder just what the latest author has to add to our understanding. You might redouble your skepticism if you just glance at Mark Stephen Jendrysik's table of contents, offering chapters on Winstanley, Milton, Cromwell, Filmer, and Hobbes, and zeroing …

Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr

Michigan Journal of Race and Law

In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained …

Inordinate Chill: Bits, Non-Nafta Mits, And Host-State Regulatory Freedom- An Indonesian Case Study, Stuart G. Gross

Michigan Journal of International Law

A number of structural factors, which are beyond the immediate scope of this Note, may influence less wealthy countries to cave in to investor threats of arbitration, as Indonesia appears to have done here. However, their hesitancy to fight may also be based, in part, on an inadequate understanding of the applicable law, which allows investors to inordinately influence host-State decisions through threats of arbitration that have little or no chance of success. In regard to the mining companies' threat, this at least appears to be the case. As this Note will demonstrate, the GOI could have likely beaten the …

Legal Orientalism, Teemu Ruskola

Michigan Law Review

Fifty years ago comparative law was a field in search of a paradigm. In the inaugural issue of the American Journal of Comparative Law in 1952, Myres McDougal remarked unhappily, "The greatest confusion continues to prevail about what is being compared, about the purposes of comparison, and about appropriate techniques." In short, there seemed to be very little in the field that was not in a state of confusion. Two decades later, referring to McDougal's bleak assessment, John Merryman saw no evidence of progress: "few comparative lawyers would suggest that matters have since improved." And only a few years ago, …

All My Rights, Carl E. Schneider

Articles

Diane Pretty was an Englishwoman in her early 40s who had been married nearly a quarter of a century. In November 1999, she learned she had amyotrophic lateral sclerosis-in Britain, motor neurone disease. Her condition deteriorated rapidly, and soon she was "essentially paralysed from the neck downwards." She had "virtually no decipherable speech" and was fed by a tube. She was expected to live only a few months or even weeks. AB a court later explained, however, "her intellect and capacity to make decisions are unimpaired. The final stages of the disease are exceedingly distressing and undignified. AB she is …

Festo: A Case Contravening The Convergence Of Doctrine Of Equivalents Jurisprudence In Germany, The United Kingdom, And The United States, Katherine E. White

Michigan Telecommunications & Technology Law Review

Despite differences in patent law jurisprudence in Germany, the United Kingdom and the United States, the fundamental principles underlying each system serve the same basic purpose: to encourage technological innovation and dissemination of knowledge. In granting exclusive patent rights, it is important that the scope of patent protection not be so broad as to remove existing knowledge from the public domain. The scope of protection should strike a balance between granting adequate patent rights while preserving the public's ownership in the public domain or the prior art. To encourage innovation patentees must attain significant exclusive rights, while potential infringers receive …

Russian Compliance With Articles Five And Six Of The European Convention Of Human Rights As A Barometer Of Legal Reform And Human Rights In Russia, Jeffrey Kahn

University of Michigan Journal of Law Reform

This Note examines two of Russia's obligations under the European Convention on Human Rights (ECHR): the Article 5 right to liberty and security, and the Article 6 right to a fair trial to gauge Russian compliance with European human rights norms. These articles lie at the heart of systematic legal reform in the Russian Federation. This Note defends the thesis that the agonizingly slow progress of judicial reform and the advancement of human rights in Russia is a function of the inevitable lag of conceptual norms behind institutional reform. Part I explores the weak place of the rule of law …

Federalism Or Federationism, William E. Butler

Michigan Law Review

When I took up my appointment in October 1970 as Reader in Comparative Law in the University of London, I was invited to collaborate in teaching the LL.M.' course in Soviet Law offered within the University on an intercollegiate basis. The course had been introduced two years previously, the first of its kind within the realm. Originally it was offered by a team of three, regrettably all now deceased: Edward Johnson, Ivo Lapenna, and Albert K. R Kiralfy. I had come to England to replace the late Edward Johnson, whose untimely death had left vacant the Readership in Soviet Law, …

A Life In The Craft Of Comparative Law, John C. Reitz

Michigan Law Review

It is obvious to specialists in the law of the European Union ("E.U.") - a relatively small but steadily growing group in the United States - that a "retrospective" collection of Eric Stein's writings would be of great interest. From his 1955 article in the Columbia Law Review, the first article about the Court of Justice of the European Coal and Steel Community to appear in English (p. 473), he has been one of the dominant U.S. scholars of what was initially called "European Community" ("E.C.") law after the three original European Communities2 and more recently has been rechristened "European …

Premature Predictions Of Multiculturalism?, Kirsten Matoy Carlson

Michigan Law Review

The late twentieth century ushered in a renewed interest in constitutional democracy as Latin American states revised earlier constitutions and post-Communist countries in Eastern Europe wrote new constitutions to reflect their democratic aspirations. Processes of constitution-making continued throughout the 1990s with new constitutions emerging in states throughout Africa, Latin America, and Europe. The rejuvenation of constitution-making also renewed scholarly interest in comparative constitutionalism. Scholars investigating constitution-making processes in Eastern Europe and Africa soon developed theories on how these processes and the contents of national constitutions changed in the late twentieth century. Donna Lee Van Cott contributes to the new literature …

Islamic Law And Ambivalent Scholarship, Khaled Abou El Fadl

Michigan Law Review

This book reminds me of the image of the arrogantly condescending and blustering tourist in Cairo who drifts into a store that has taken the trouble of prominently displaying the price of their commodities in nicely typed tags. Nevertheless, the tourist walks in, reads the price tag, and then proclaims, "Okay, what is the real price?" The poor store employee stares at him with incredulity, and simply repeats the price on the tag, and, in response, the tourist emits this knowing and smug smile as if saying, "I know you guys, you never mean what you say; everything in Arab …

China, Nicholas C. Howson, Lester Ross, Donald Clarke

Book Chapters

The mere notion of bankruptcy, liquidation or reorganisation of industrial enterprises was long considered anathema in the People's Republic of China (PRC or China), and directly contrary to the underlying logic of a centrally planned, state-owned economy and industrial system. The state's reluctance to allow bankruptcies was rooted in the ideology of the governing Communist Party but also reflects fiscal constraints with respect to payments to unemployed workers and the recapitalisation of state-owned commercial banks forced to write off loans as bad debts. However, such notions have gained wider acceptance concurrent with:

• China's ongoing transformation to a socialist market economy; …

No Black Names On The Letterhead? Efficient Discrimination And The South African Legal Profession, Lisa R. Pruitt

Michigan Journal of International Law

Although there have long been black lawyers in South Africa, during apartheid only a handful joined the ranks of the country's large commercial firms. Now, in the post-apartheid period, these firms are keenly aware of a range of economic and political incentives to hire black attorneys, and most are doing so at a record pace. Very few black attorneys, however, are enduring the path to partnership in these firms. Based on more than seventy-five interviews conducted in South Africa in 1999 and 2000, this Article both documents and critically examines the reasons for black attrition. While firms' incentives to integrate …

Let One Hundered Flowers Bloom, One Hundred Schools Contend: Debating Rule Of Law In China, Randall Peerenboom

Michigan Journal of International Law

The Article proceeds in three stages. Part I provides a brief overview of thin versions of rule of law and their relation to thick theories. Part II then takes up the four thick versions of rule of law. Part III addresses a number of thorny theoretical issues that apply to rule of law theories generally and more specifically to the applicability of rule of law to China. For instance, can the minimal conditions for rule of law be sufficiently specified to be useful? Should China's legal system at this point be described as rule by law, as in transition to …

Reforming Disability Nondiscrimination Laws: A Comparative Perspective, Stanley S. Herr

University of Michigan Journal of Law Reform

Comparing the law and policies of other countries concerning disability rights to ours can help us understand how we may strengthen those rights and heighten compliance with nondiscrimination laws. Since it took effect in 1992, the Americans with Disabilities Act (ADA) has been a leading example of such comprehensive legislation on behalf of people with disabilities. Along with the United Nations Standard Rules on Equalization of Opportunities for Persons with Disabilities, the ADA has inspired many countries to develop their own disability nondiscrimination laws and remedial agencies. This process must work in both directions, however, and laws and agencies from …

Citizen Participation In Judicial Decision Making: Juries, Lay Judges And Japan, Richard O. Lempert

Articles

In the late 1920s and 1930s Japan had a jury system. It was suspended in 1943 as a wartime measure, but it had fallen into desuetude long before that. Arguably it was like the Spanish jury, which has several times risen during periods of relative political liberalism or populism and been suppressed during periods of militarism and autocracy. That is, it may be more than a coincidence that use of the Japanese jury fell precipitously during the 1930s as militarism took hold of the Japanese nation. Now the reinstatement of the Japanese jury is again being seriously considered. Similarly it …

International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

Michigan Telecommunications & Technology Law Review

The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection--or variations in that protection--hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing …

The Impact Of Family Paradigms, Domestic Constitutions, And International Conventions On Disclosure Of An Adopted Person's Identities And Heritage: A Comparative Examination, D. Marianne Brower Blair

Michigan Journal of International Law

This article examines the extent to which international law has and will potentially influence the direction of the reform and implementation of adoption disclosure norms. Though it does not yet appear that international law mandates recognition of an absolute right to identifying information when such disclosure is opposed by a birth parent or adoptee, examination of these conventions and the response of the international community underscores the critical importance of identifying information to many adoptees, and a growing movement to afford primacy to their interests.

Law As A Tool For A Sexual Revolution: Israel's Prevention Of Sexual Harassment Law- 1998, Tzili Mor

Michigan Journal of Gender & Law

Discussion of the newly enacted law will outline the theoretical underpinnings and their effect on the resultant version (Part III), followed by the legislative history, including the Knesset and the public debate surrounding the bill (Part IV), and the impact of that debate on the final outcome of the law (Part V). Part VI will pay particular attention to the innovative approach of the law as a whole and some of the revolutionary specific provisions within. In particular, the legislative framework will be considered in the context of a nation founded and conducted on traditional religious tenets of Judaism. Finally, …

A Property Theory Perspective On Russian Enterprise Reform, Michael Heller

Book Chapters

Why have Russian enterprises performed so poorly since privatization? This is a problem with many answers, each independently sufficient: the bleak mix includes vacillating macroeconomic policy, endemic corruption, a corrosive tax structure, poor human capital, and so forth. Even well-performing companies must hide good results because visible profits or dividends provoke confiscatory taxation and mafia visits. In such a difficult environment, the rule of law generally, and corporate governance in particular, may seem not to count. Macroeconomic implosions dwarf subtle distinctions in corporate dividend rules or minority voting rights.

The Foreign Affairs Of Federal Systems: A National Perspective On The Benefits Of State Participation, Daniel Halberstam

Articles

In recent years, the constitutional law of foreign relations has come under intense academic scrutiny, and with it the traditionally accepted constitutional balance between the federal government and the States. In the course of this renewed debate, revisionist scholars have challenged the previously dominant view that States have no place in foreign affairs.

Globalization And Tax Competition: Implications For Developing Countries, Reuven S. Avi-Yonah

Articles

The current age of globalization can be distinguished from the previous one (from 1870 to 1914) by the much higher mobility of capital than labor (in the previous age, before immigration restrictions, labor was at least as mobile as capital). This increased mobility has been the result of technological changes (the ability to move funds electronically), and the relaxation of exchange controls. The mobility of capital has led to tax competition, in which sovereign countries lower their tax rates on income earned by foreigners within their borders in order to attract both portfolio and direct investment. Tax competition, in turn, …

An Empirically Based Comparison Of American And European Regulatory Approaches To Police Investigation, Christopher Slobogin

Michigan Journal of International Law

This article takes a comparative and empirical look at two of the most significant methods of police investigation: searches for and seizures of tangible evidence and interrogation of suspects. It first compares American doctrine regulating these investigative tools with the analogous rules predominant in Europe. It then discusses research on the American system that sheds light on the relative advantages and disadvantages of the two regulatory regimes.

The Anatomy Of An Institutionalized Emergency: Preventive Detention And Personal Liberty In India, Derek P. Jinks

Michigan Journal of International Law

Despite many indications of an emerging transnational consensus on the scope of human rights law, fundamental disagreements persist. These disagreements are, in many respects, structured around important cleavages in the international community such as: North/South, East/West, and capitalist/socialist. Whether these cleavages are understood as cultural, economic, or political, international lawyers must develop a better understanding of the specific practices that generate divergent interpretations of human rights standards. Without such an understanding, these factions seem to underscore an irreducibly political conception of human rights. Indeed, the prospects of a global "community of law" turn on the degree to which fundamental differences …

The United Kingdom Bill Of Rights 1998: The Modernisation Of Rights In The Old World, Clive Walker, Russell L. Weaver

University of Michigan Journal of Law Reform

Into a steadfastly conservative constitutional landscape, the United Kingdom Parliament has now introduced a Bill of Rights, the Human Rights Act of 1998, which takes effect in October 2000. The Act provides for a full catalogue of civil and political rights which are enforceable by the courts. This development raises two questions in evaluating the future of English law. First, does this signify the dawn of a new British radicalism? And second, why has it happened now? In answering these questions in relation to England and Wales, Part I of this Article provides an introduction to the traditional treatment of …

Franco's Spain, Queer Nation?, Gema Pérez-Sánchez

University of Michigan Journal of Law Reform

This Article discusses how, through its juridical apparatus, the Spanish dictatorship of Francisco Franco sought to define and to contain homosexuality, followed by examples of how underground queer activism contested homophobic laws. The Article concludes by analyzing a literary work to illustrate the social impact of Francoism's homophobic law against homosexuality.

Querying A Queer Spain Under Franco, Peter Kwan

University of Michigan Journal of Law Reform

There should be more articles in the legal journals such as Professor Gema Pérez-Sánchez's. In Franco's Spain, Queer Nation?, Professor Pérez-Sánchez has done a great service to legal scholarship in four respects. Firstly, she has written an appropriately far-ranging piece. In a discipline that has as one of its central missions the broadening of critical legal discourse, LatCrit can sometimes appear to suffer from symptoms of parochialism in its understandable emphasis on the Latina/o experience within American borders, or on the experience of its Latina/o immigrants once they have reached these shores. To be sure, this is not a problem …