Comparative and Foreign Law Commons^™

The Confucian Challenge To Intellectual Property Reforms, Peter K. Yu

Faculty Scholarship

Written for a special issue on intellectual property and culture, this essay examines the longstanding claim that culture presents a major barrier to intellectual property reforms. In the context of Asia -- China, in particular -- that claim invokes Confucianism, a non-Western culture, to account for the region's -- or the country's -- continued struggle with massive piracy and counterfeiting problems. The claim draws on a century-old tradition of condemning Confucianism for being antithetical to Western modernity.

The first half of this essay focuses on the Confucian challenge to intellectual property reforms in China. Drawing on the important distinction between …

The Pragmatic Court: Reinterpreting The Supreme People’S Court Of China, Taisu Zhang

Faculty Scholarship

This Article examines the institutional motivations that underlie several major developments in the Supreme People's Court of China's recent policy-making. Since 2007, the SPC has sent off a collection of policy signals that escapes sweeping ideological labeling: it has publically embraced a populist view of legal reform by encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, while continuing to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower …

Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias

Faculty Scholarship

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean …

Freedom Of Expression And Its Competitors, George C. Christie

Faculty Scholarship

The recognition of an increasing number of basic human rights, such as in the European Convention on Human Rights, has had the paradoxical effect of requiring courts in the common-law world to consider whether the extensive protection given by the common law to expression that was not false or misleading must be modified to accommodate these newly recognized basic rights. The most important of these newly recognized rights is the right of privacy, although expression has other competitors as well, such as what might be called a right to be spared the emotional trauma caused by abusive language. This article …

Finding International Law, Part Ii: Our Fragmenting Legal Community, Harlan G. Cohen

Faculty Scholarship

Is there an “International Community?” This Article suggests that there is not, that the oft-discussed fragmentation of international law reveals that there are in fact multiple overlapping and competing international law communities, each with differing views on law and legitimacy.

This Article reaches this conclusion by taking a fresh look not only at the sources of fragmentation, but at the sources of international law itself. Building on earlier work rethinking international law’s sources and drawing insights from legal philosophy, compliance theory, and international relations, this Article takes a closer look at three areas that have challenged traditional interpretations of international …

Libya: A Multilateral Constitutional Moment?, Catherine Powell

Faculty Scholarship

The Libya intervention of 2011 marked the first time that the UN Security Council invoked the “responsibility to protect” principle (RtoP) to authorize use of force by UN member states. In this comment the author argues that the Security Council’s invocation of RtoP in the midst of the Libyan crisis significantly deepens the broader, ongoing transformation in the international law system’s approach to sovereignty and civilian protection. This transformation away from the traditional Westphalian notion of sovereignty has been unfolding for decades, but the Libyan case represents a further normative shift from sovereignty as a right to sovereignty as a …

Direct Concern In Regional Policy: The European Court Of Justice And The Southern Question, Daniela Caruso

Faculty Scholarship

For a few years, the European Court of Justice (ECJ) has declared inadmissible, for lack of direct concern, a number of annulment actions initiated by sub-state actors in the context of regional policy. This article compares the ECJ's holdings with the General Court's more generous application of the ‘direct concern’ standard in some of the same disputes, and argues in favour of the General Court's approach. The cases hereby analysed pertain to the implementation of structural funds in Southern Italy. Relating regional policy to the historical unfolding of the ‘Southern Question’, this article examines the unexpected opportunity for civic and …

Sinic Trade Agreements, Peter K. Yu

Faculty Scholarship

In the past decade, the European Union and the United States have pushed aggressively for the development of bilateral and regional trade agreements. What are the strengths and weaknesses of these agreements? Are China's bilateral and regional trade agreements different from these agreements? What are China's goals and negotiation strategies? What will happen if China's bilateral approach clashes with that of the European Union or the United States?

This Article begins by examining China's growing engagement with the less developed world, in particular Africa, Latin America and Southeast Asia. It analyzes the goals, strengths and weaknesses of EU economic partnership …

Vat Fraud: The Tradable Services Problem, Richard Thompson Ainsworth

Faculty Scholarship

Tradable services – VoIP termination services, mobile minutes, software as a service (SaaS), or almost any service bought or sold in the “cloud” – are a distinct class of taxable supplies. These service-based supplies both resemble and differ fundamentally from goods. They also differ from services that are consumed-on-purchase (consumed services).

Tradable services are designed from the beginning for re-sale. They are hybrid supplies that behave commercially like goods, but have functional attributes that make them hard to distinguish from services generally. When determining the place of supply/ place of taxation for these kinds of supplies, their hybrid character presents …

The Functionalism Of Legal Origins, Ralf Michaels

Faculty Scholarship

This article, written on request for the centennial issue of Ius Commune Europaeum, connects the economic literature on legal origins (La Porta et al) and the World Bank's Doing Business reports with discussions in comparative law about the functional method. It finds that a number of parallels and similarities exist, and that much of the criticism that has been voiced against functionalism should apply, mutates mutants, also to these more recent projects. The attraction that these projects have derive not, it is argued, from their methodological sophistication, but instead from "the strange lure of economics" and from the ostentatious objectivity …

Harvesting Intellectual Property: Inspired Beginnings And 'Work-Makes-Work,' Two Stages In The Creative Processes Of Artists And Innovators, Jessica Silbey

Faculty Scholarship

This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents, and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists, and engineers about how and why they create and innovate. It also collects stories from their employers, business partners, managers, and lawyers about their role in facilitating the process of creating and innovating. The book’s aim is to make sense of the intersection between intellectual property law and creative and innovative activity, specifically to discern how intellectual property intervenes in the careers of the …

The United States Supreme Court: An Introduction, Bert I. Huang

Faculty Scholarship

The Supreme Court of the United States has always occupied a center place in the comparative study of judicial institutional design and the role of courts. In this roundtable discussion, National Taiwan University College of Law is honored to have Professor Bert I. Huang from Columbia Law School, United States, who had served as the law clerk of Supreme Court Justice David H. Souter, to unveil the ways that the U.S. Supreme Court functions by introducing the certiorari process and the system of law clerks. Based on his own experience, Professor Huang provides his insight on the institution of law …

Comparative Law: Problems And Prospects, George A. Bermann, Patrick Glenn, Kim Lane Scheppele, Amr Shalakany, David V. Snyder, Elizabeth Zoller

Faculty Scholarship

The following is an edited transcript of the closing plenary session of the XVIIIth International Congress of Comparative Law. The session took place on Saturday, July 31, 2010, in Washington, D.C., at the conclusion of the week-long congress, which is held quadrennially by the International Academy of Comparative Law (Académie Internationale de Droit Comparé). The remarks were given in a mix of French and English, but for ease of reading the transcript below is almost entirely in English.

The Flaws Of Foreign Affairs Legalism, Daniel Abebe, Eric A. Posner

Faculty Scholarship

Foreign affairs legalism, the dominant approach in academic scholarship on foreign relations law, holds that courts should abandon their traditional deference to the executive in foreign relations, and that courts and Congress should take a more activist ole in foreign relations than they have in the past. Foreign affairs legalists believe that greater judicial involvement in foreign relations would curb executive abuses and promote adherence to international law. This Article argues that foreign affairs legalism rests on implausible assumptions about the incentives and capacities of courts. In U.S. history, the executive has given more support to international law than the …

Property Rights In Land, Agricultural Capitalism, And The Relative Decline Of Pre-Industrial China, Taisu Zhang

Faculty Scholarship

No abstract provided.

Inclusive Constitutional Comparison: Reflections On India's Sodomy Decision, Madhav Khosla

Faculty Scholarship

Recent years have witnessed an outpouring of literature evaluating whether judges should refer to foreign law in resolving domestic legal disputes. A range of theories now posit constitutional comparison, outlining its benefits and highlighting its promise. Yet the support for such a practice is deeply qualified; comparative scholars narrowly limit the nations that should be considered while performing comparative study. This essay in comparative law theory reflects upon India's recent sodomy decision, Naz Foundation v. Government of NCT of Delhi, to evaluate which countries should be part of the comparative law project. In Naz, the Delhi High Court …

A Populist Threat To China's Courts?, Benjamin L. Liebman

Faculty Scholarship

Is the Chinese party-state too responsive to public opinion? In the case of the courts, this may be the case. Western literature has devoted extensive attention to the problems in the Chinese legal system, in particular in the courts, describing a system that continues to be undermined by a range of problems, from corruption to lack of competence to continued Communist Party intervention. Likewise, existing literature describes a legal system that often is unresponsive to individual demands for justice. In this chapter, I examine another possibility: that one impediment to the development of courts that are able to protect individual …

Comparative International Law, Ugo Mattei

Faculty Scholarship

No abstract provided.

Reconciling European Union Law Demands With The Demands Of International Arbitration, George A. Bermann

Faculty Scholarship

European Union ("EU" or "Union") law and the law of international arbitration have traditionally occupied largely separate worlds, as if arbitral tribunals would rarely be the fora for the resolution of EU law claims and as if EU law, in turn, had little concern with arbitration. For several reasons, this pattern has recently been altered, although the relationship between EU law and international arbitration law is at present anything but settled. From the present perspective, the past looks like an age of innocence, for as these two worlds have begun to intersect, they have not done so entirely harmoniously.

Part …

Universal Exceptionalism In International Law, Anu Bradford, Eric A. Posner

Faculty Scholarship

A trope of international law scholarship is that the United States is an "exceptionalist" nation, one that takes a distinctive (frequently hostile, unilateralist, or hypocritical) stance toward international law. However, all major powers are similarly "exceptionalist," in the sense that they take distinctive approaches to international law that reflect their values and interests. We illustrate these arguments with discussions of China, the European Union, and the United States. Charges of international-law exceptionalism betray an undefended assumption that one particular view of international law (for scholars, usually the European view) is universally valid.

Buried Treasure Or Buried Hope? The Status Of Mexico-U.S. Transboundary Aquifers Under International Law, Gabriel E. Eckstein

Faculty Scholarship

Transboundary aquifers found along the 2,000 mile-long border between Mexico and the United States are not governed by any treaty. Yet, these aquifers are the primary source of water for many of the twelve million people who live in this parched region. The region’s groundwater, however, is being over-exploited and contaminated, which is threatening the very life that it currently sustains. As populations continue to expand and current rates of haphazard development persist, the absence of an agreement for the management and allocation of this critical resource could lead to bi-national economic, social and environmental tragedies. This study reviews groundwater …

China's Turn Against Law, Carl F. Minzner

Faculty Scholarship

Chinese authorities are reconsidering legal reforms they enacted in the 1980s and 1990s. These reforms had emphasized law, litigation, and courts as institutions for resolving civil grievances between citizens and administrative grievances against the state. But social stability concerns have led top leaders to question these earlier reforms. Central Party leaders now fault legal reforms for insufficiently responding to (or even generating) surging numbers of petitions and protests.

Chinese authorities have now drastically altered course. Substantively, they are de-emphasizing the role of formal law and court adjudication. They are attempting to revive pre-1978 Maoist-style court mediation practices. Procedurally, Chinese authorities …

Comparing Regulatory Oversight Bodies Across The Atlantic: The Office Of Information And Regulatory Affairs In The Us And The Impact Assessment Board In The Eu, Jonathan B. Wiener, Alberto Alemanno

Faculty Scholarship

‘Quis custodiet ipsos custodes?’ asked the Roman poet Juvenal – ‘who will watch the watchers, who will guard the guardians?’ As legislative and regulatory processes around the globe progressively put greater emphasis on impact assessment and accountability, we ask: who oversees the regulators? Although regulation can often be necessary and beneficial, it can also impose its own costs. As a result, many governments have embraced, or are considering embracing, regulatory oversight--frequently relying on economic analysis as a tool of evaluation. We are especially interested in the emergence over the last four decades of a new set of institutional actors, the …

The Canadian Criminal Jury, Neil Vidmar, Regina Schuller

Faculty Scholarship

The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values .Jury selection procedure in most trials is similar to that of England: jurors are assumed to be “impartial between the Queen and the accused” and are selected without a voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a “challenge for cause” process …

Comparative Law, Ralf Michaels

Faculty Scholarship

Written for an encyclopedia on European private law, this brief
article addresses term, purposes, methods and development of
comparative law. Special attention is given to the role of comparative
law in European private law studies, European law-making and European
adjudication.

Restatements, Ralf Michaels

Faculty Scholarship

Written for an encyclopedia on European private law, this brief article first addresses the term restatements and then compares the U.S. Restatement of the law as prototype with different European restatements of the law in the area of private law.

Rollen Und Rollenverständnisse Im Transnationalen Privatrecht [Roles And Role Perceptions In Transnational Private Law], Ralf Michaels

Faculty Scholarship

Downloadable Document is in German

Summary

1. The private lawyer’s role is inseparably connected with the paradigms and doctrines of private law. This is so because the role played by private lawyers constitutes a large part of their understanding of the discipline. At the same time, the shared understanding of the discipline has necessary consequences for the roles played by lawyers in it.

2. Roles and role perceptions in private law are contingent upon space and time. The most important factor affecting private lawyers today is the growing detachment of private law from the state, through globalization, Europeanization, and privatization …

Revolution And Intervention In The Middle East, Catherine Powell

Faculty Scholarship

No abstract provided.

Different Cultures, Different Conflicts: Sex Discrimination Law And The United States And Japan, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

Transfer Pricing, Business Restructurings, And Intangibles: Case Studies From The U.K. And The U.S., Richard Thompson Ainsworth, Andrew Shact

Faculty Scholarship

United Parcel Service of America, the largest motor carrier in the US, and DSG Retail the largest retailer of electrical goods in the UK, restructured operations and established captive insurance companies in offshore tax havens. In both instances, these restructurings removed sizeable amounts of income from the domestic tax base.

The IRS and HMRC opened transfer pricing audits. The UPS case involved tax year 1984 and was settled in 2003; DSG Retail involved 1997 through 2005 and was settled in 2009. Both settlements came on the heels of government-favorable court decisions, and prior to the addition of Chapter IX to …