Comparative and Foreign Law Commons^™

Hard Cases, Carl E. Schneider

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Robert Latimer was born in 1953 on a farm on the prairies of Saskatchewan and grew up to own a 1,280-acre farm. In 1980 he married, and that year Tracy, the first of four children, was born. During her birth, Tracy's brain was terribly damaged by lack of oxygen, and severe cerebral palsy ensued. By 1993 Tracy could laugh, smile, and cry, and she could recognize her parents and her siblings. But she could not understand her own name or even simple words like "yes" and "no." She could not swallow well and would so often vomit her parents kept …

Judicial Reform In Brazil, Keith S. Rosenn

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Judicial reform is currently a hotly debated topic in Brazil. The call for reform of the Brazilian judiciary, however, is anything but new. The Brazilian judiciary has been in a state of crisis since colonial days, and despite numerous attempts at reform, it remains in crisis. With the privatization of Brazil's state-owned enterprises, the growth of Mercosur, the urgent need to make Brazilian firms competitive in world markets, the emphasis upon attracting foreign investment, and the opening of Brazil's economy to foreign competition, Brazilian political leadership began to focus upon ways to reform Brazil's malfunctioning judicial system. Unfortunately, the proposed …

The Tragedy Of The Anticommons: Property In The Transition From Marx To Markets, Michael A. Heller

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Why are many storefronts in Moscow empty, while street kiosks in front are full of goods? In this Article, Professor Heller develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a commons, multiple owners are each endowed with the privilege to use a given resource, and no one has the right to exclude another When too many owners hold such privileges of use, the resource is prone to overuse - a tragedy of the commons. Depleted fisheries …

Islamic Law As A Source Of Constitutional Law In Egypt: The Constitutionalization Of The Sharia In A Modern Arab State, Clark B. Lombardi

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No abstract provided.

Thoughts From Across The Water On Hearsay And Confrontation, Richard D. Friedman

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This article draws on the history of the hearsay rule, and on recent decisions of the European Court of Human Rights, to argue that the right to confrontation should be recognised as a basic principle of the law of evidence, and that aspects of the Law Commission's proposals for reform of the hearsay rule, and of the Home Office's proposals for restrictions on the right of cross-examination, are therefore unsatisfactory.

Enlightenment, Donald J. Herzog

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It's a curious broadside, a work of austere graphics and polite prose far removed from the mischievous engravings and bawdy ballads usually appearing on such sheets. Drawn from an address that 345 printers had signed and 138 had presented to the queen, the original text was committed to parchment "and accompanied by a Copy surperbly printed on white Satin, edged with white Silk Fringe, backed with purple Satin, and mounted in an Ivory Roller with appropriate Devices." Even in the published version, the arch is full of intricately detailed work. The printers took pride in their craftmanship: "This Specimen of …

Are Criminal Defendants In Japan Truly Receiving Trials By Judges, Daniel H. Foote

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Since my initial appointment as an assistant judge in April of 1950, I have served as a judge for over 39 1/2 years. For most of that time, over 30 years, I have handled criminal trials. Thus, one might say that I personally represent a living history of the current Code of Criminal Procedure. Human beings, however, inevitably tend to idle their time away; and I have been kept busy day in and day out handling cases and up until now have never had the chance to sit back and reflect dispassionately on the actual state of criminal trials. That …

Establishing Deliberative Democracy: Moving From Misery To Poverty With Dignity, Irwin P. Stotzky

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No abstract provided.

Judicial Creation Of Norms In Japanese Labor Law: Activism In The Service Of — Stability?, Daniel H. Foote

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This Article begins by examining the judiciary's role in employment litigation. Part II then considers the implications of this and related examples of judicial creation of norms in Japan. Plainly, in this context the stereotype of a passive judiciary with little significance for private parties is inaccurate. Yet do these cases truly reflect judicial "activism"? What is their significance with respect to the separation of powers debate? Even with regard to the sphere of private ordering, what judicial philosophy do they reflect? This Article then examines the impact that this judicially created set of employment norms has had, both on …

Doctrine Of Equivalents After Hilton Davis: A Comparative Law Analysis, Toshiko Takenaka

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This Article will address a number of major topics. First, it discusses the Federal Circuit's renewed interest in Graver Tank and the merger of the infringement test with the patentability test established by the Supreme Court in Graham v. John Deere Co. Then, this Article responds to the dissenting judges in Hilton Davis who emphasized the danger of uncertainty that stems from the in-principle application of the doctrine of equivalents. This response explains that the application of the doctrine does not increase the uncertainty in determining infringement but, rather, encourages clear, definitive claim drafting. It then examines the relationship …

Structures Of Environmental Criminal Enforcement, Michael E. Herz

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No abstract provided.

Does A Cultural Barrier To Intellectual Property Trade Exist? The Japanese Example, Toshiko Takenaka

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What is the so-called "cultural barrier to intellectual property trade?" No definition for this phrase readily came to me when I began exploring the topic. Japanese intellectual property scholars and professionals strongly suspect that their U.S. counterparts, who find institutional or economic explanations for discrepancies between European and American business customs, nevertheless tend to attribute the differences between Japanese and American business practices to cultural differences. Three popular arguments offered to substantiate this "cultural barrier to intellectual property trade" theory are: (1) the application of the concepts of competition and monopoly to intangibles such as technology and ideas is foreign …

Norms And Property In The Middle Kingdom, Glenn R. Butterton

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No abstract provided.

The German Duality Of State And Society, David Abraham

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No abstract provided.

Gasshūkoku Ni Okeru Hōgakkai To Hōjitsumukai [The Worlds Of Academics And Legal Practice In The United States], Daniel H. Foote

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I prepared this paper for a symposium entitled, "Academics and Practitioners in Japan and the United States: Can the Two Worlds Ever Meet?" When I saw the symposium title, my first reaction was that it might seem strange to ask whether the worlds of academics and legal practice can ever meet in the United States. After all, to a large degree the history of the law school in the United States has been that of an institution dedicated to the training of legal practitioners; the vast majority of US law professors are members of the bar; and many, if not …

Resolution Of Traffic Accident Disputes And Judicial Activism In Japan, Daniel H. Foote

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The topic of resolution of traffic accident cases in Japan has already seen two works in English: a 1989 article by J. Mark Ramseyer and Minoru Nakazato in the Journal of Legal Studies and a 1990 article by Takao Tanase in the Law and Society Review. Why yet another article?

First, despite the fine treatment of a wide range of issues in those articles, neither of those works gave much attention to what I regard as one of the most interesting and important aspects of the Japanese treatment of automobile accident cases: namely, the role of the judiciary and the …

Four Views Of Japanese Attorneys, Daniel H. Foote

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The four articles translated below appeared in a special collection entitled: Bengoshi--san Monosatari-or, A Tale of Lawyers. This collection was No. 198 in the Bessatsu Takarajma series, a series that contains such other tides as: How to Develop Brain Power (Noryoku toreningu no gijutsu, No. 41), The Court Game (Salban gemu, No. 169), and The Dark Side of Real Estate (Fudosan no ura, No. 177). As these titles ·reflect, publications in the series are aimed at the mass market. not the world of academics. A further caveat is thatr as with the majority …

Strong Criticism Of The American System Of Trial By Jury, Yale Kamisar

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I grieve for my country to say that the administration of the criminal law in all the states in the Union (there may be one or two exceptions) is a disgrace to our civilization.

Deep Inner Lives, Individualism And People Of Honour, William I. Miller

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With the exception of St Augustine and perhaps Abelard, often praised as modern before their time, it is not unusual to find it maintained that the individual was not available in any serious conceptual, psychological or even sociological way before the seventeenth century. Our thick and deep self, according to this view, is thus a rather recent phenomenon. Some more expansive souls find the individual already emerging a century earlier, during the Reformation. Within the last three decades, medievalists, chagrined at being contemned by classicists on one flank and an alliance of Renaissance scholars, early modernists, modernists and post-modernists on …

The Challenge Of Asian Law, Whitmore Gray

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Several years ago, when U.S. trade across the Pacific finally surpassed that across the Atlantic, a small group of U.S. lawyers were already responding to the challenge of representing clients in transactions in Asia. While few had had the opportunity to take courses dealing with Asian law during their law school years, many entered the field because of undergraduate language and area studies courses. A few had taught courses dealing with Asia before beginning their law studies.

Advising The Neocapitalists, James J. White

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I write to reflect on what American lawyers can and will do for these emerging free market economies. I am more skeptical than most.

Civilizing The Savages: A Comparison Of Assimilation Laws And Policies In The United States And Australia, Craig J. Trocino

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No abstract provided.

The Market For Loyalties: Electronic Media And The Global Competition For Allegiances, Monroe E. Price

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The article critiques the traditional "marketplace of ideas" metaphor in First Amendment jurisprudence and proposes a more accurate framework: the "market for loyalties." This model highlights how powerful entities, including governments and private actors, use communication regulation to shape identities and allegiances. The First Amendment, under this interpretation, functions as a regulatory allocation among these entities rather than a guarantee of unfettered speech. The rise of global communication technologies and competing loyalties challenges the nation-state's ability to control this market, reshaping the role of law and governance in identity formation.

In Pursuit Of The Counter-Text: The Turn To The Jewish Legal Model In Contemporary American Legal Theory, Suzanne Last Stone

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Beginning with Professor Robert Cover's Nomos and Narrative, contemporary American legal scholars have increasingly turned, implicitly or more directly, to the Jewish legal tradition as an example of a legal system in which law is defined not by reference to the authority and power of the State, but rather by the commitment of a legal community to voluntarily-accepted legal obligations. These scholars depict the Jewish legal system as having successfully confronted - and resolved - several central dilemmas currently facing American law by maintaining a coherent legal system while accepting behavioral and interpretive pluralism. In this Article, Professor Stone shows …

Japan’S ‘Foreign Workers’ Policy: A View From The United States, Daniel H. Foote

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No abstract provided.

"The Door That Never Opens"?: Capital Punishment And Post-Conviction Review Of Death Sentences In The United States And Japan, Daniel H. Foote

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The capital punishment system and current standards for collateral review of capital sentences appear quite similar in the United States and Japan. On a deeper level, though, the systems are moving in very different directions. Given. the extensive literature on capital punishment and capital habeas in the United States, this article focuses chiefly on Japan, examining the process by which the standards governing postconviction review have been relaxed and the impact of that change. Japan's Supreme Court bears the image of being a highly conservative, passive institution resistant to dramatic .change of any sort. Yet this examination reveals that, in …

The 1991 Supreme Court Term: Review And Outlook, John O. Mcginnis

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The 1991 Supreme Court Term was the first during which justices originally appointed by Presidents Ronald Reagan and George Bush-Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, and Clarence Thomas-constituted a majority. The term's main surprise, however, was that this majority of five-indeed, a majority of six when Chief Justice William Rehnquist, elevated to that position by President Reagan precisely because of his judicial philosophy, is included-did not forge a consistent jurisprudential majority characterized by the strict interpretative approach favored by their sponsoring presidents. While, generally speaking, the Court's decisions certainly continued to represent a departure from the expansive …

The Benevolent Paternalism Of Japanese Criminal Justice, Daniel H. Foote

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Models for a criminal-justice system based on an ethos of rehabilitation and reintegration-such as Llewellyn's "parental" and Griffiths' "family" models-have been regarded as idealistic but unworkable in the real world, except perhaps in totalitarian or primitive societies. Professor Foote, however, has found in Japan just such a model, which he labels "benevolent paternalism." The Japanese criminal-justice system is benevolent in that its goal is to achieve reformation and reintegration into society through lenient sanctions tailored to the offender's particular circumstances. The system is paternalism in that it allows substantial discretion to the state in both gathering and using information about …

Recent Developments - Cinematic Sex And Censorship In Indian Film, Anita Ramasastry

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This Recent Development examines the increasing presence of cinematic rape in general-audience Indian films and discusses the potential cultural origins of the cinematic portrait of Indian women as chaste subordinates to men and as frequent subjects of violence. To account for this trend, this Recent Development outlines the legal guidelines governing Indian film censorship, and in particular the guidelines regulating sexuality. From this vantage point, the use of various suggestive cinematic techniques, including the regular portrayal of rape, may be seen as attempts by directors to circumvent government censure of kissing and other intimate relations on-screen. Finally, this Recent Development …

Child Protection Legal Process: Comparing The United States And Great Britain, Donald N. Duquette

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The legal response to child maltreatment-or the risk of child maltreatment-varies greatly from society to society and has been little studied, in part because of the idiosyncrasies of community values, social organization, history and legal traditions.2 Cross-country comparison of child abuse and neglect is especially difficult because the ambiguity of social standards and the imprecision of terms used makes it difficult to define the specific behavior one is studying. Even though child maltreatment is widely prohibited, the definition of what actually constitutes child abuse and neglect is not clear within a particular country, much less uniform from one society to …