Comparative and Foreign Law Commons^™

Corporate Restructuring Under Relative And Absolute Priority Default Rules: A Comparative Assessment, Jonathan M. Seymour, Steven L. Schwarcz

Faculty Scholarship

The European Union recently adopted a Restructuring Directive intended to facilitate the reorganization of insolvent and other financially troubled firms. Although the central goal of the Directive parallels that of chapter 11 of U.S. bankruptcy law—to protect and maximize the value of financially distressed but economically viable enterprises by consensually reorganizing their capital structure—the Directive introduces an innovative but controversial option: that EU Member States can decree that reorganization negotiations should be subject to a relative priority default rule, in contrast to the type of absolute priority default rule used by chapter 11. EU officials argue that relative priority is …

Overlapping Copyright And Trademark Protection In The United States: More Protection And More Fair Use?, Jane Ginsburg, Irene Calboli

Faculty Scholarship

This chapter addresses the phenomenon of overlapping rights under US law and complements Chapter 25 authored by Professors Derclay and Ng-Loy on the overlap of trademark, copyright, and design protection under several other Common Law and Civil Law jurisdictions. Because the United States does not provide sui generis protection for industrial design, but instead protects design through trademark law (notably by protecting trade dress) and design patents, this chapter focuses on the overlap between trademark and copyright protection. The Lalique bottles created for Nina Ricci perfumes, for example, may enjoy both trademark and copyright protection in the United States. Similarly, …

Corporate Social Responsibility, Casino Capitalism, And The Constitution Of Macau, Jason Buhi

Faculty Scholarship

No abstract provided.

America's New Covenant With Hong Kong: The Hong Kong Human Rights And Democracy Act Of 2019, Jason Buhi

Faculty Scholarship

No abstract provided.

The Pandemic Paradox In International Law, Peter G. Danchin, Jeremy Farrall, Shruti Rana, Imogen Saunders

Faculty Scholarship

No abstract provided.

Navigating The Backlash Against Global Law And Institutions, Peter G. Danchin, Jeremy Farrall, Jolyon Ford, Shruti Rana, Imogen Saunders, Daan Verhoeven

Faculty Scholarship

No abstract provided.

Delaware's New Competition, William J. Moon

Faculty Scholarship

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law.

This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector …

Legislatures, Executives And Political Control Of Government, Gillian E. Metzger

Faculty Scholarship

This chapter examines how political control over government is exercised today in the UK, the US, and France, focusing on control of the executive branch by the legislature and control of the administrative executive by the political executive. These three jurisdictions were chosen because they are paradigmatic examples of different political regimes: parliamentarism, separation of powers presidentialism, and semi-presidentialism. In theory, these different institutional structures should affect how political control is understood and wielded. In the traditional Westminster parliamentary model, for example, the government is formed from the leadership of the majority party in Parliament and it is the government …

Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney

Faculty Scholarship

This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system – identifying Argentina’s as the provinces, the …

Cyberattacks And The Constitution, Matthew C. Waxman

Faculty Scholarship

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers – and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.

Victim Impact Statements At Canadian Corporate Sentencing, Erin L. Sheley

Faculty Scholarship

The recent SNC-Lavalin scandal and its political fallout have drawn
public attention to an existing culture of impunity enjoyed by corporate
criminal wrongdoers, despite the 2004 changes to the Criminal Code of
Canada that intended to make corporate prosecutions easier. In this article,
I argue that the conceptual problems with corporate criminal liability may
lie in the criminal justice system’s general misapprehension of the nature of
corporate crime; especially of the distinct nature of the harm experienced
by white collar victims. I further argue that, therefore, part of the solution
to under-enforcement may be evidentiary: the Crown and courts should, …

Who Is A Refugee?: Twenty-Five Years Of Domestic Implementation And Judicial Interpretation Of The 1969 Oau And 1951 Un Refugee Conventions In Post-Apartheid South Africa, Tiyanjana Maluwa, Anton Katz Sc

Faculty Scholarship

As a party to the UN Refugee Convention and the OAU Refugee Convention, South Africa is obligated to apply international refugee law when addressing the protection needs of asylum seekers in the country. The Refugees Act, 1988 encapsulates the cardinal principles of the two conventions. This essay discusses how government officials and judges have interpreted and applied these principles in asylum application cases. These cases demonstrate that officials are either not always fully conversant with the legal obligations, incumbent upon the government arising from both international law and domestic law or purposefully ignore them. For the most part, officials tend …

Anticipating Venezuela's Debt Crisis: Hidden Holdouts And The Problem Of Pricing Collective Action Clauses, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

A creditor who asks for stronger enforcement rights upon its debtor’s default will rationally accept a lower interest rate reflecting the greater expected recovery the exercise of those rights provides. Over a dozen studies, however, have failed to document this basic relationship in the context of the collective action clause, a key provision in sovereign bonds. We conjecture that this failure is because enforcing the rights in question requires collective decision-making among anonymous creditors with different interests, impeding market predictions regarding future price effects. The pricing of rights that require collective enforcement thus turns on whether the market observes an …

The Modern Architecture Of Religious Freedom As A Fundamental Right, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Introduction: The Roles Of The Restatements In U.S. Foreign Relations Law, Paul B. Stephan, Sarah H. Cleveland

Faculty Scholarship

This introductory chapter serves as a foreword for the volume. It sketches the history of past restatements and the evolution of the latest one. The first (confusingly called Second) Restatement of the Foreign Relations Law of the United States brought widespread attention to the term “foreign relations law.” It staunchly defended the proposition that foreign relations, no matter how imbued with discretion and prerogative, still must rest on law. The Third Restatement, prepared during a period of what to many seemed constitutional retrenchment and a loosening of judicial supervision over public life, offered a robust defense of the proposition that, …

India’S First Period: Constitutional Doctrine And Constitutional Stability, Madhav Khosla

Faculty Scholarship

Studies on constitutional stability and endurance rarely gesture toward the role of legal doctrine. While the workings of courts are often considered in understanding how a constitutional order might be sustained, this is almost variably achieved by examining the relationship between courts and other institutions. This chapter takes a different approach and studies the way in which constitutional consolidation might also be shaped by the doctrinal orientations and forms of reasoning that courts adopt. It does so by considering the first period of Indian constitutionalism. The focus is on two specific areas: the place of the Directive Principles in India’s …

Some Kind Of Right, Jud Mathews

Faculty Scholarship

The Right to Be Forgotten II crystallizes one lesson from Europe’s rights revolution: persons should be able to call on some kind of right to protect their important interests whenever those interests are threatened under the law. Which rights instrument should be deployed, and by what court, become secondary concerns. The decision doubtless involves some self-aggrandizement by the German Federal Constitutional Court (GFCC), which asserts for itself a new role in protecting European fundamental rights, but it is no criticism of the Right to Be Forgotten II to say that it advances the GFCC’s role in European governance, so long …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

The Chicago School’S Limited Influence On International Antitrust, Anu Bradford, Adam S. Chilton, Filippo Maria Lancieri

Faculty Scholarship

Beginning in the 1950s, a group of scholars primarily associated with the University of Chicago began to challenge many of the fundamental tenants of antitrust law. This movement, which became known as the Chicago School of Antitrust Analysis, profoundly altered the course of American antitrust scholarship, regulation, and enforcement. What is not known, however, is the degree to which Chicago School ideas influenced the antitrust regimes of other countries. By leveraging new datasets on antitrust laws and enforcement around the world, we empirically explore whether ideas embraced by the Chicago School diffused internationally. Our analysis illustrates that many ideas explicitly …

Disaggregating Corporate Liability: Japanese Multinationals And World War Ii, Timothy Webster

Faculty Scholarship

The past two decades have witnessed unprecedented attention to corporate legal liability for human rights abuses. Yet the supporting jurisprudence is relatively thin. Scholars generally agree that corporations can incur legal liability for serious violations of international human rights law. But courts find any number of ways to avoid such a result. This Article finds qualified support for an emergent norm of corporate civil liability from recent litigation in Japan. Specifically, the transnational war reparations litigation of the past three decades has yielded a consistent jurisprudence of qualified liability. Courts detail the abuses committed by Japan's largest multinational corporations, and …

The Law Of Corporate Investigations And The Global Expansion Of Corporate Criminal Enforcement, Jennifer Arlen, Samuel W. Buell

Faculty Scholarship

The United States model of corporate crime control, developed over the last two decades, couples a broad rule of corporate criminal liability with a practice of reducing sanctions, and often withholding conviction, for firms that assist enforcement authorities by detecting, reporting, and helping prove criminal violations. This model, while subject to skepticism and critiques, has attracted interest among reformers in overseas nations that have sought to increase the frequency and size of their enforcement actions. In both the U.S. and abroad, insufficient attention has been paid to how laws controlling the conduct of corporate investigations are critical to regimes of …

From Nuisance To Environmental Protection In Continental Europe, Vanessa Casado-Pérez, Carlos Gomez Liguerre

Faculty Scholarship

This paper analyzes the evolution and complexity of the legal response to neighboring conflicts in European civil law countries. All of the civil codes analyzed (France, Germany, Spain, Netherlands, and Catalonia) are based on Roman Law rules that are not always clear. The fuzziness of those Roman Law rules explains, in part, why despite this common origin, the Civil Codes did not respond homogeneously to nuisances. The first subsection briefly describes the institution of nuisance in Roman Law. Then, the paper describes the original codification of nuisance and the changes in the treatment of this institution. After assessing the initial …

The Asean Way Or No Way? A Closer Look At The Absence Of A Common Rule On Intellectual Property Exhaustion In Asean And The Impact On The Asean Market, Irene Calboli

Faculty Scholarship

The Symposium in which this essay is published features recent developments in the law of intellectual property (IP) in Asia. In this essay, I focus on the Association of South East-Asian Nations (ASEAN), a region that I have had the opportunity to visit extensively in the past several years. In particular, I analyze the enforcement of IP rights in the context of the application of the principle of IP exhaustion in individual ASEAN Members, and the relationship between this principle and free movement of goods within the ASEAN region. In the past, I have addressed the same topic with respect …

Interpenetration Of Powers: Channels And Obstacles For Populist Impulses, Anya Bernstein

Faculty Scholarship

Discussions of populism often focus on the most visible points of executive power: individual leaders. Yet individual leaders only accomplish things through administrative apparatuses that enable and support their power. Rejecting a political theology that imagines sovereignty as inhering in a single decision-maker, this article turns to political pragmatics focused on the people who populate the government. I draw on interviews with administrators in the government of two successful but quite different democracies. The first is the United States, an old, flagship democratic state. The second is Taiwan, which transitioned from a four-decade military dictatorship to a vibrant democracy in …

Regulating Offshore Finance, William J. Moon

Faculty Scholarship

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies.

While the prevailing account has examined offshore financial havens as “tax havens” that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable corporations to evade domestic regulatory law. Specifically, recent U.S. Supreme Court cases restricting the geographic …

Sustainable And Open Access To Valuable Legal Research Information: A New Framework, Alex Zhang, James Hart

Faculty Scholarship

This article evaluates the current status of access to foreign and international legal research information, analyzes the challenges that information providers have experienced in providing valuable and sustainable access, and proposes a model that would help create and facilitate effective and sustainable access to valuable foreign, comparative, and international legal information.

Techniques For Regulating Military Force, Monica Hakimi

Faculty Scholarship

This chapter draws on the five chapters that follow—each of which describes the war powers in a single country — to identify and analyze some of the techniques for regulating this area of foreign affairs and then to reflect on the value of comparative research on it. Three basic techniques are: (1) to establish substantive standards on when the government may or may not use force, (2) to divide among different branches of government the authority to deploy the country’s armed forces, and (3) to subject such decisions to oversight or review. There is considerable variation, both across countries and …

On Constructing A Knowledge Base Of Chinese Criminal Cases, Xiaohan Wu, Benjamin L. Liebman, Rachel E. Stern, Margaret Roberts, Amarnath Gupta

Faculty Scholarship

We are developing a knowledge base over Chinese judicial decision documents to facilitate landscape analyses of Chinese Criminal Cases. We view judicial decision documents as a mixed-granularity semi-structured text where different levels of the text carry different semantic constructs and entailments.We use a combination of context-sensitive grammar, dependency parsing and discourse analysis to extract a formal and interpretable representation of these documents. Our knowledge base is developed by constructing associations between different elements of these documents. The interpretability is contributed in part by our formal representation of the Chinese criminal laws, also as semi-structured documents. The landscape analyses utilizes these …

Global Settlements: Promise And Peril, John C. Coffee Jr.

Faculty Scholarship

In 2010, Morrison v. National Australia Bank Ltd. destabilized the world of securities litigation by denying those who purchased their securities outside the U.S. the ability to sue in the U.S. (as they had previously often done). Nature, however abhors a vacuum, and practitioners and other jurisdictions began to seek ways to regain access to U.S. courts. Several techniques have emerged: (1) expanding settlement classes so that they are broader than litigation classes and treating the location of the transaction as strictly a merits issue that defendants could waive; (2) adopting U.S. law as applicable to securities issued abroad by …

Private Law Statutory Interpretation, Shyamkrishna Balganesh

Faculty Scholarship

While scholars routinely question the normative significance of the distinction between public law and private law, few – if any – question its conceptual basis. Put in simple terms, private law refers to bodies of legal doctrine that govern the horizontal interaction between actors, be they individuals, corporate entities, or on occasion the state acting in its private capacity. Public law on the other hand refers to doctrinal areas that deal with vertical interaction between the state and non-state actors, wherein the state exerts a direct and overbearing influence on the shape and course of the law. The latter is …