Comparative and Foreign Law Commons^™

Rethinking Immigration Enforcement, Peter L. Markowitz

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As the nation turns the page away from the dark chapter of President Trump's relentless assault on immigrants, it is time to take stock of the nation's unprecedented immigration enforcement regime. During its relatively short existence, the Immigration and Customs Enforcement agency (ICE) has deported more than twice as many people as were deported in the entire previous history of the United States. The human and fiscal costs of ICE's mass deportation agenda are astronomical, and there is almost universal agreement across the political spectrum that the United States' immigration enforcement apparatus is badly broken. That, however, is where the …

"Benevolent Paternalism" Revisited, Daniel H. Foote

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Nearly thirty years ago, in an article entitled “The Benevolent Paternalism of Japanese Criminal Justice” (Benevolent Paternalism), I sought to set out a model for the Japanese criminal justice system, the “benevolent paternalism” model. As the label reflects, I viewed the Japanese criminal justice system as consisting of two sides, a “paternalistic” side and a “benevolent” side. This essay begins with a short summary of the model; it then turns to an examination of major developments in the intervening three decades and considers whether the model remains relevant today.

Protecting Culturally Identifiable Fashion: What Role For Gis?, J. Janewa Osei-Tutu

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Geographical indications are a type of intellectual property right that can be used to protect a source indicator when some quality, characteristic, or reputation of a good is attributable to its geographic origin. To the extent that geographic location and culture overlap, geographical indications could be described as a form of cultural protection. Italy, which is known for both its food and fashion, has geographical indications for a range of items, such as extra virgin olive oils, pastas, and wines. Can geographical indications protect other aspects of culture, such as fashion? For example, the famous Italian designer, Valentino, received both …

Kings, Lords And Courts In Anglo-Norman England, Robert Hirshon

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This is an important book, filling a significant gap in scholarship on late Anglo-Saxon and Anglo-Norman law, lordship, and administration. Its primary focus is on the hundred court and its relationship to lords’ local courts. Nicholas Karn argues (204) that, following the creation of shires and hundreds across England in the tenth century, by the middle of the eleventh “the unitary model of the hundred was starting to break down, and decay accelerated and became general into the twelfth century.” Lords either “claimed whole hundreds themselves, or they created lesser units which were originally subsets of hundreds and which were …

Understanding National Remedies And The Principle Of National Procedural Autonomy: A Constitutional Approach, Daniel H. Halberstam

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This article provides a constitutionally grounded understanding of the vexing principle of ‘national procedural autonomy’ that haunts the vindication of EU law in national court. After identifying tensions and confusion in the debate surrounding this purported principle of ‘autonomy’, the Article turns to the foundational text and structure of Union law to reconstruct the proper constitutional basis for deploying or supplanting national procedures and remedies. It further argues that much of the case law of the Court of Justice of the European Union may be considered through the lens of ‘prudential avoidance’, ie the decision to avoid difficult constitutional questions …

Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix T. Wu, Justin Hughes

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This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020.

The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the application …

Cultural Ip Vs. Commercial Ip [Notes], J. Janewa Osei-Tutu

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No abstract provided.

Cultural Ip Vs. Commercial Ip, J. Janewa Osei-Tutu

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No abstract provided.

Justice System Reform And Internationalization, Daniel H. Foote

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As discussant. normally my role would be to offer trenchant and perceptive critiques of each of the three main reports. those by Professors Takamizawa. Matsuo. and SuamL Those reports are broad in scope, both geographical and historical; each report is outstanding: and each provides much food for thought. Yet even if time and space permitted, I myself lack sufficient knowledge regarding China. Southeast Asia and Europe to provide a thorough critique. Instead. in this essay I will shift the focus back to Japan and examine various respects in which the justice system reforms have sought to promote internationalization.

Regulatory Responses To Medical Machine Learning, Timo Minssen, Sara Gerke, Mateo Aboy, W. Nicholson Price Ii, Glenn Cohen

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Companies and healthcare providers are developing and implementing new applications of medical artificial intelligence, including the artificial intelligence sub-type of medical machine learning (MML).MML is based on the application of machine learning (ML) algorithms to automatically identify patterns and act on medical data to guide clinical decisions. MML poses challenges and raises important questions, including (1) How will regulators evaluate MML-based medical devices to ensure their safety and effectiveness? and (2) What additional MML considerations should be taken into account in the international context? To address these questions, we analyze the current regulatory approaches to MML in the USA and …

The Elusive Object Of Punishment, Gabriel S. Mendlow

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All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute’s elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; …

Misunderstanding Judy Norman: Theory As Cause And Consequence, Martha R. Mahoney

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Judy Norman shot her abusive husband during a late afternoon nap while he rested before violently trafficking her that night. The sharp contrast between the extreme violence and danger Judy faced and the denial of a self-defense instruction triggered extensive academic debates about justification and the use of deadly force. Norman became one of the most famous cases involving battered women, appearing in many casebooks and hundreds of law review articles. Despite all this work, the facts of the case contradict much of what scholars have said about Norman. Misconceptions about expert evidence, "Battered Woman Syndrome, "and battered women drive …

Stock Market Reactions To India's 2016 Demonetization., Vikramaditya S. Khanna, Dhammika Dharmapala

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On November 8, 2016, the Indian government made a surprise announcement that certain currency notes (representing 86 percent of the currency then in circulation) would no longer be legal tender (although they could be deposited in banks over a limited period). The stated reason for this sudden “demonetization” was to combat tax evasion and corruption associated with “unaccounted for” cash. We compute abnormal returns for different subsamples of firms—defined by industry, ownership structure, and other characteristics—on the Indian stock market around this event. There is little evidence that sectors thought to be associated with greater tax evasion or corruption experienced …

Complete Distributive Rules And The Single Tax Principle: A Review Of Recent Italian Case Law, Reuven S. Avi-Yonah, Gianluca Mazzoni

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The authors, in this article, examine the application of complete distributive rules as set out in various tax treaties as it relates to the single tax principle by reference to recent Italian case law.

On 11 October 2018, in Decision No. 25219, the Italian Corte Suprema di Cassazione (Supreme Court, CSC) confirmed that treaty provisions limiting the exercise of the domestic power to tax by the source state also apply where the residence state does not actually tax the relevant item of income. In that case, where a tax treaty attributes exclusive tax jurisdiction over an item of income to …

The Rule Of Law Collaborative: A Center Of Practical, Interdisciplinary Research, And Engagement On Pressing Rule Of Law Issues Around The World, Joel H. Samuels

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No abstract provided.

Binaries: Remarks On Chaim N. Saiman's "Halakhah", Richard Weisberg

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Binaries are helpful but deceptive, and this may be particularly true of simplistic theological dichotomies purporting to show that the Talmud is "Nitpicking" and Christian Biblical understandings "Expansive", or that Jews believe in the "letter" and Christians in the "spirit", Jews in strict Justice and Christians in "mercy", etc. This essay, which focuses on the character of Shylock and the legalistic cruelty inflicted upon him by Venice's Christians, dissolves such Binaries, leaving in their wake greater clarity about the contrary need to "re-binarize" the falsely unified hyphenated adjective "Judaeo-Christian".

The Legacy Of Colonialism On The Rule Of Law In Sub Saharan Africa, Joel H. Samuels

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No abstract provided.

Religious Slaughter And Animal Welfare Revisited: Cjeu, Liga Van Moskeeen En Islamitische Organisaties Provincie Antwerpen (2018), Anne Peters

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The article comments on a Grand Chamber judgment by the Court of the European Union on animal slaughter according to Islamic prescriptions. The relevant European Union laws prescribe that religious slaughter without stunning of the animal may only take place in approved slaughterhouses. This causes a shortage during the Muslim Feast of Sacrifice in the Belgian province ofAntwerp. The EU law provisions are in conformity with the animal welfare mainstreaming clause of the Treaty on the Functioning of the European Union. Moreover, the EU regulation and its application in the concrete case does not violate the fundamental right of free …

Review Of Chaim Saiman's The Rabbinic Idea Of Law, Suzanne Last Stone

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The article reviews Chaim Saiman's Halakhah: The Rabbinic Idea of Law, highlighting its contribution to understanding rabbinic law as a cultural and educational force. Saiman's work bridges legal and cultural scholarship by emphasizing halakhah's dual role as both regulatory and expressive, drawing on Robert Cover's paideic model of law and Lawrence Rosen's concept of law as cosmology. The book explores how Talmudic discourse embodies this duality, blending legal reasoning with moral, theological, and ethical inquiry, and examines the tension between maintaining religious meaning and legal detail.

Gender In The Context Of Same-Sex Divorce And Relationship Dissolution, Suzanne A. Kim, Edward D. Stein

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This article identifies ways that judges, lawyers, researchers, and policy makers may attend to the role of gender and gender dynamics facing same-sex couples upon divorce or other relationship dissolution. When same-sex couples marry, the legal system and society at large may project conceptions of gender onto same-sex couples, often in a manner that conflicts with couples’ intentions and practices. Gender and gender dynamics may affect the bases for dissolution, the financial aspects of dissolution, and the determination of child custody. The article also suggests directions for future research on the impact of gender on the dissolution of same-sex relationships.

Dispute System Design Can Help: To Bring About The Future Envisioned By Gpc Participants, We Need To Change The Structure Of What We Do, Lela P. Love, Lisa Blomgren Amsler, Mansi Karol

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No abstract provided.

Profit-Split Method: Time For Countries To Apply A Standardized Approach, Jeffery M. Kadet, Tommaso Faccio, Sol Picciotto

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Now that the OECD has issued its final guidance on the action 10 profit-split method, individual countries must determine how they might consider and apply the profit-split method.

It’s true that some countries have large and well-staffed transfer pricing audit groups that include economists and other tax professionals knowledgeable in the application of transfer pricing principles and rules. However, those resources are never enough to match the legions of specialists that can be deployed by large multinational groups.

The situation is even worse elsewhere. Most countries not only have significant resource and personnel constraints, but they also simply do not …

Sovereign Patent Funds, Xuan-Thao Nguyen

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No abstract provided.

China And Beps, Reuven S. Avi-Yonah, Haiyan Xu

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This article provides an overview of China’s reaction to the G20/OECD Base Erosion and Profit Shifting (BEPS) project. From 2013 to 2015, the OECD developed a series of actions designed to address BEPS activities by multinational enterprises, culminating in a final report of 15 action steps. The article reviews and explains China’s reaction to the BEPS project and its actions in detail, with a particular focus on transfer pricing issues. It shows that China has actively participated in both developing and implementing the BEPS project. The article further suggests that in the post-BEPS era, China is expected to implement the …

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

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Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors …

Fundamental Rights, Federal States, And Sovereignty: Some Random Remarks, Donald H. Regan

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I am not an EU lawyer. The days are long gone when I could know a substantial fraction of EU law just by knowing about the free movement of goods. I get a fleeting glimpse of where the EU is going every year at the Jean Monnet Seminar in Dubrovnik, but no more than a glimpse. Still, when the editors invited me to write this Editorial Note, I could not refuse. Looking for inspiration, I read or reread all the previous twelve Notes. This was an enjoyable and informative exercise in itself, but only a few of the essays suggested …

China's 'Corporatization Without Privatization' And The Late 19th Century Roots Of A Stubborn Path Dependency, Nicholas Howson

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This Article analyzes the contemporary program of “corporatization without privatization” in the People's Republic of China (PRC) directed at China's traditional state-owned enterprises (SOEs) through a consideration of long ago precursor enterprise establishments--starting from the last Chinese imperial dynasty's creation of “government-promoted/-supervised, merchant-financed/-operated” (guandu shangban) firms in the latter part of the nineteenth century. While analysts are tempted to see the PRC corporations with listings on international exchanges that dominate the global economy and capital markets as expressions of “convergence,” this Article argues that such firms in fact show deeply embedded aspects of path dependency unique to the Chinese context …

Ip Enforcement Under The Tpp: Civil And Administrative Procedures And Remedies, Provisional Measures In Tpp (Articles, 18.71-18.76), J. Janewa Osei-Tutu

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No abstract provided.

Data Collection And The Regulatory State, Hillary Green, James Cooper, Ahmed Ghappour, Felix Wu

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The following remarks were given on January 27, 2017 during the Connecticut Law Review's symposium, "Privacy, Security & Power: The State of Digital Surveillance."

In Re Akhbar Beirut & Al Amin, Monica Hakimi

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On August 29, 2016, the Special Tribunal for Lebanon (Tribunal) sentenced a corporate media enterprise and one of its employees for contemptuously interfering with the Tribunal's proceedings in Ayyash, a prosecution concerning the February 2005 terrorist attack that killed former Lebanese Prime Minister Rafiq Hariri. The contempt decision is significant for two reasons: (1) it adopts an expansive definition of the crime of contempt to restrict a journalist's freedom of expression; and (2) it is the first international judicial decision to hold a corporate entity criminally responsible.