Comparative and Foreign Law Commons^™

Policymaking By The Japanese Judiciary In The Criminal Justice Field, Daniel H. Foote

Articles

When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and …

Promoting Public Health Through Clinical Legal Education: Initiatives In South Africa, Thailand, And Ukraine, Tamar Ezer

Articles

No abstract provided.

From The Chair, Lela P. Love

Articles

No abstract provided.

Restrictions On Political Activity By Judges In Japan And The United States: The Cases Of Judge Teranishi And Justice Sanders, Daniel H. Foote

Articles

In the late 1990s, similar dramas relating to political activity by judges were playing out on opposite sides of the Pacific Ocean. The cases involved a Japanese decision concerning an assistant judge of the Sendai District Court, Teranishi Kazushi, and an American decision relating to a newly sworn-in justice of the Supreme Court of the State of Washington, Richard Sanders. Both attended gatherings with distinctly political agendas. Both made brief remarks implying, but never directly stating, their support for the agendas presented. Both were censured for having engaged in impermissible political activity. Both appealed those censures, ultimately as far as …

Green From Above: Climate Change, New Developmental Strategy, And Regulatory Choice In China, Dongsheng Zang

Articles

This essay discusses a developmental strategy formulated in China between 2004 and 2007, with a strong emphasis on energy efficiency in response to growing pressure from global concerns of climate change. It tries to show how a top-down regulatory structure was reinforced in the process.

London As Delaware?, Adam C. Pritchard

Articles

Jurisdictional competition in corporate law has long been a staple of academic-and sometimes, political-debate in the United States. State corporate law, by long-standing tradition in the United States, determines most questions of internal corporate governance-the role of boards of directors, the allocation of authority between directors, managers and shareholders, etc.-while federal law governs questions of disclosure to shareholders-annual reports, proxy statements, and periodic filings. Despite substantial incursions by Congress, most recently in the Sarbanes-Oxley Act of 2002, this dividing line between state and federal law persists, so state law arguably has the most immediate impact on corporate governance outcomes.

Leitprinzip Gleichstellung?: 10 Jahre Gender Mainstreaming In Der Deutschen Bundesverwaltung, Susanne Baer, S. Lewalter, J. Gebbert

Articles

Gender Equality as a Guiding Principle? – 10 Years of Gender Mainstreaming in the Federal Administration of Germany The implementation of gender mainstreaming in the German federal administration from 1999 to 2009 is described from the perspective of actors of scientific consultancy. From the beginning the process of implementation was focused on the change of administrative routines. Important and innovative results were achieved in this field. But this approach had obvious limitations, because the relevance of objectives of gender equality for the work of each ministry was rarely discussed. Making gender equality a principle that guides the work of the …

The German Constitutional Court Says 'Ja Zu Deutschland!', Daniel H. Halberstam, Christoph Möllers

Articles

In announcing the decision of the Bundesverfassungsgericht (BVerfG - Federal Constitutional Court) on the constitutionality of the Lisbon Treaty, the Presiding Justice of the Second Senate summed up the judgment by proclaiming: “Das Grundgesetz sagt ‘Ja' zum Vertrag von Lissabon.”

London As Delaware?, Adam C. Pritchard

Articles

In the United States, state corporate law determines most questions of internal corporate governance - the role of directors; the allocation of authority between directors, managers, and shareholders; etc. - while federal law governs questions of disclosure to shareholders - annual reports, proxy statements, and periodic filings. Despite substantial incursions by Congress, most recently with the Sarbanes-Oxley Act, this dividing line between state and federal law persists, so state law arguably has the most immediate effect on corporate governance outcomes.

How Globalization Affects Tax Design, James R. Hines Jr., Lawrence H. Summers

Articles

The economic changes associated with globalization tighten financial pressures on governments of high-income countries by increasing the demand for government spending while making it more costly to raise tax revenue. Greater international mobility of economic activity, and associated responsiveness of the tax base to tax rates, increases the economic distortions created by taxation. Countries with small open economies have relatively mobile tax bases; as a result, they rely much less heavily on corporate and personal income taxes than do other countries. The evidence indicates that a ten percent smaller population in 1999 is associated with a one percent smaller ratio …

Monitoring Of Corporate Groups By Independent Directors, Adam C. Pritchard

Articles

Both the United States and Korea have reformed their corporate governance in recent years to put increasing responsibilities on independent directors. Independent directors have been found to be an important force protecting the interests of shareholders when it comes time to make certain highly salient decisions, such as firing a CEO or selling the company. This article compares the role of independent directors in the US and Korean systems. I argue that the US may have placed regulatory burdens on independent directors that they are unlikely to be able to satisfy, given their part-time status. By contrast, in the chaebol …

Incorporating A 'Best Interests Of The Child' Approach Into Immigration Law And Procedure, Bridgette A. Carr

Articles

United States immigration law and procedure frequently ignore the plight of children directly affected by immigration proceedings. This ignorance means decision-makers often lack the discretion to protect a child from persecution by halting the deportation of a parent, while parents must choose between abandoning their children in a foreign land and risking the torture of their children. United States immigration law systematically fails to consider the best interests of children directly affected by immigration proceedings. This failure has resulted in a split among the federal circuit courts of appeals regarding whether the persecution a child faces may be used to …

From Environment To Energy: China's Reconceptualization Of Climate Change, Dongsheng Zang

Articles

Domestically and internationally, by the first half of 2009 it was already questionable whether the Copenhagen Conference could achieve anything. Anthony Giddens warned-in an otherwise inspiring book on climate change-that "doomsday is no longer a religious concept, a day of spiritual reckoning, but a possibility imminent in our society and economy." In such a context, it becomes imperative to revisit some of the fundamental issues in the Kyoto Protocol framework. Are timetables and targets really the best way to regulate climate change? Does the current framework create bad politics? Where are the powerful driving forces towards a low-carbon society?

This …

Success Or Failure?: Japan's National Strategy On Intellectual Property And Evaluation Of Its Impact From The Comparative Law Perspective, Toshiko Takenaka

Articles

This short Article will discuss Japan's national IP strategy and changes brought to the IP system, focusing on features that follow the U.S. IP system. Additionally, it will review these changes from the comparative law perspective and evaluate whether the new system has accomplished its national strategy mission.

Separation Of Powers In Brazil, Keith S. Rosenn

Articles

No abstract provided.

John C. H. Wu At The University Of Michigan School Of Law, Xiuqing Li

Articles

The following is an English language translation of a 2008 Chinese language article on John C.H. Wu, Soochow Law School LL.B. 1920 and Michigan Law School, J.D. 1921, by Professor Li Xiuqing of Shanghai's East China University of Political Science and Law. Li is a specialist in Chinese and foreign legal history, with a focus on the transplant of Western and Japanese law into China during the late imperial and modern era. She also serves as the Secretary-General of the China Foreign Legal History Association. In 2006-07, Li was a Fulbright Scholar at the University of Michigan Law School, where …

Promoting Equality After Genocide, Sheri P. Rosenberg

Articles

The value of equality has little currency after genocide and ethnic cleansing. Restoring that value is no easy feat. Paramount, though not singular, in this struggle for equality is the role of the law A State establishes its common legal rights and duties through its legal institutions, which define the values and character of the nation. Legal institutions mediate these values and norms and through legal pronouncements provide a template for future civic engagement and social interaction. Equality and antidiscrimination jurisprudence is particularly important during the delicate period of transition alter genocide, because it grounds within society the normative shift …

Jurisdictions And Causes Of Action: Commercial Considerations In Dealing With Bullying, Stress And Harassment Cases-Part Ii, Niall Neligan

Articles

In the concluding part of this two part article, the author will
examine how the courts have developed rules for dealing with
tortious claims for psychiatric injuries arising out of bullying, stress
and harassment cases. The article will examine whether it is
desirable to consolidate and codify employment rights law in order
to provide clarity to prospective litigants. Finally, the author will
argue that if codification is required, then this will necessitate a
change in the nature of present jurisdictions for bringing claims
involving bullying, stress and harassment in the workplace.

Restructuring The Courts: In Search Of Basic Principles For The Judiciary Of Post-War Bosnia And Herzegovina, David Pimentel

Articles

No abstract provided.

Sociolegal Islands?, Daniel H. Foote

Articles

In 1992, in an address at the American Society of Comparative Law annual meeting, Professor Mary Ann Glendon of Harvard Law School bemoaned the state of comparative legal studies in the United States. Many scholars specialized in comparative law, she observed. But at Harvard and other law schools, they were like islands; they conducted research and teaching largely in isolation, having little contact with the core curriculum or other faculty. From the many nods of agreement. it was evident she had voiced a common concern.

Primarily due to increased globalization, the situation has changed. At many law schools comparative perspectives …

Egypt's Supreme Constitutional Court: Managing Constitutional Conflict In An Authoritarian, Aspirationally Islamic State, Clark B. Lombardi

Articles

No abstract provided.

Back To The Future? The Potential Revival Of Territoriality, Reuven S. Avi-Yonah

Articles

Since 1994, the trend in the United States and other developed countries appears to be to reduce the scope of residence jurisdiction and increase the emphasis on source jurisdiction. If this trend continues, these countries are likely to move toward territoriality and decrease the emphasis on their CFC rules. In the author’s opinion, the reason for this trend is political and economic, not legal. It is part of tax competition, specifically the competition to be the headquarters jurisdiction for multinationals. The author also thinks, however, that it is not necessary to go down this road because the solution to the …

Do Investors In Controlled Firms Value Insider Trading Laws? International Evidence, Laura Nyantung Beny

Articles

This article characterizes insider trading as an agency problem in firms that have a controlling shareholder. Using a standard agency model of corporate value diversion through insider trading by the controlling shareholder, I derive testable hypotheses about the relationship between corporate value and insider trading laws among such firms. The article tests these hypotheses using firm-level cross-sectional data from twenty-seven developed countries. The results show that stringent insider trading laws and enforcement are associated with greater corporate valuation among the sample firms in common law countries, a result that is consistent with the claim that insider trading laws mitigate agency …

Employment Discrimination Remedies: The Shape Of Lawsuits, The Shape Of The Law: Proceedings Of The 2008 Annual Meeting Association Of American Law Schools Section On Employment Discrimination Law And Section On Remedies, Michael P. Allen, Paul M. Secunda, Julie C. Suk, Tristin K. Green, Brad Seligman, Elaine W. Shoben

Articles

The article examines the effectiveness of legal frameworks and corporate practices in addressing employment discrimination, contrasting the French criminal approach with the U.S. reliance on civil remedies and diversity initiatives. It argues that while criminal investigations in France have successfully uncovered and punished discriminatory hiring practices, U.S. corporations often evade meaningful change through ineffective diversity training and lack robust accountability mechanisms. The analysis underscores the need for structural reforms in the U.S., emphasizing the importance of accountability and flexibility in consent decrees to drive lasting progress in diversity and inclusion.

Procedural Path Dependence: Discrimination And The Civil-Criminal Divide, Julie C. Suk

Articles

Procedural path dependence occurs when the particular features of the procedural system that is charged with enforcing a given legal norm determine the substantive path of that norm. This Article shows how the limits of employment discrimination law in two different national contexts can be explained by procedural dynamics. In France, as in several European countries, employment discrimination law is enforced predominantly in criminal proceedings. French criminal procedure enables the discovery of information necessary to prove the facts of discrimination, whereas the limits of French civil procedure make it impossible for such information to be revealed. As a result, the …

Consumers Of Financial Services And Multi-Level Regulation In The European Union, Caroline Bradley

Articles

No abstract provided.

Discrimination At Will: Job Security Protections And Equal Employment Opportunity In Conflict, Julie C. Suk

Articles

The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at …

The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles C. Jalloh

Articles

No abstract provided.

Taxing Consumption And Other Sins, James R. Hines Jr.

Articles

Federal and state governments in the United States use income and payroll taxes as their primary tools to collect revenue. In the rest of the world, governments also use income and payroll taxes, but rely much more heavily than does the United States on taxing consumption. Consumption taxes take many forms, including general sales taxes, value-added taxes, and excise taxes on the consumption of specific items including gasoline, alcohol, tobacco products, firearms, air travel, telephone communication, and others. The U.S. government does not use a value-added tax, making the United States unique among high-income countries and a rarity in the …

Recent Reforms To The Japanese Judiciary: Real Change Or Mere Appearance?, Daniel H. Foote

Articles

In June 2001, the Justice System Reform Council ("Reform Council" or "Council") issued its final report. The Council's recommendations included several proposed reforms to the judiciary, intended to insure the judiciary would "meet the expectations of the people." This essay examines a number of those recommendations and the resulting reforms.

The single reform to the judiciary that has received the most publicity is the introduction of the saiban'in system, through which ordinary citizens will participate directly in judging serious crim:inal cases and thus will have the opportunity to express their views directly in the deliberation of those cases. That system, …