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Articles 181 - 210 of 568
Full-Text Articles in Comparative and Foreign Law
To Plea Or Not To Plea: The Benefits Of Establishing An Institutionalized Plea Bargaining System In Japan, Priyanka Prakash
To Plea Or Not To Plea: The Benefits Of Establishing An Institutionalized Plea Bargaining System In Japan, Priyanka Prakash
Washington International Law Journal
Plea bargaining, the practice that permits the prosecution and defense to negotiate reduced charges or a lighter sentence in exchange for the defendant’s guilty plea, is a bedrock component of the criminal justice system in many nations. The Japanese legal community, however, has resisted introducing plea bargaining into Japan’s legal system. From 2001 to 2004, the Japanese legislature passed over twenty reform laws to prepare the country’s criminal justice system for the demands of the twenty-first century, but provisions for plea bargaining were conspicuously absent from the reform package. This is largely because the Japanese legal community views plea bargaining …
Incentives For Change: China's Cadre System Applied To Water Quality, Wyatt F. Golding
Incentives For Change: China's Cadre System Applied To Water Quality, Wyatt F. Golding
Washington International Law Journal
The Chinese government has struggled to enforce environmental law, due in part to local protectionism. In an attempt to overcome local protectionism, the 2008 Law on the Prevention and Control of Water Pollution uses the cadre system to incentivize local officials to enforce national water quality standards. This comment argues that the cadre system presents a pragmatic means of attaining enforcement of quantified environmental standards because it implements the already existing Chinese Communist Party’s system of vertical hierarchy that has proven relatively successful in achieving other social goals. The cadre system, however, will only produce clean water over the long-term …
Victoria's Window Dressing: How The Environment Effects Act Of 1978 Failed At Bastion Point, Taylor K. Wonhoff
Victoria's Window Dressing: How The Environment Effects Act Of 1978 Failed At Bastion Point, Taylor K. Wonhoff
Washington International Law Journal
In 1978, Victoria’s Parliament enacted the Environment Effects Act 1978 (“EEA”), creating procedures by which the state could call for environmental impact assessments prior to beginning work on proposed construction projects. The EEA, however, is significantly flawed, in that it authorizes the Planning Minister, an elected official, the power not only to promulgate guidelines for the administration of the environmental assessment process, but also the power to determine whether the environmental effects of a project are outweighed by the economic or social benefits of the project’s completion. A case study involving Bastion Point offers a prime example of the effect …
Civil Justice And The Constitution: Limits On Instrumental Judicial Administration In Japan, Mark A. Levin
Civil Justice And The Constitution: Limits On Instrumental Judicial Administration In Japan, Mark A. Levin
Washington International Law Journal
Numerous works have shown how central judicial administrators in Japan may ideologically influence the nation’s lower court judges. This piece draws upon these reports to analyze and frame these circumstances as “instrumental judicial administration,” qualitatively distinguishing the various means used by administrators and reflecting on their degrees of impact on civil procedural justice. Then, moving from description to prescription, the work provides a thorough consideration of the underlying legal context, broadly drawing from constitutional text and history, statutory text, and case law, before launching a search for solutions in its conclusion. Although the immediate focus is on how instrumental judicial …
Initial Research On The Malfunctions Of The Criminal Process, Chen Ruihua, Timothy Webster
Initial Research On The Malfunctions Of The Criminal Process, Chen Ruihua, Timothy Webster
Washington International Law Journal
In recent years, as China’s legislature has placed the amendment of the Criminal Procedure Law on its legislative plan, more and more legal scholars are paying attention to the problem. Legal academics have produced a series of theses and books, and qualified scholars have even organized experts’ drafts of the Criminal Procedure Law, offering comprehensive and systematic theoretical works on how to revise the law. I participated in scholarly activities organized by the Criminal Affairs Committee of the All China Lawyers Federation, and drafted the first lawyers’ edition of the revised Criminal Procedure Law. Thus, the next revision of the …
Unjust Enrichment: An Alternative To Tort Law And Human Rights In The Climate Change Context?, Aura Weinbaum
Unjust Enrichment: An Alternative To Tort Law And Human Rights In The Climate Change Context?, Aura Weinbaum
Washington International Law Journal
It is generally accepted within the scholarly international community that global climate change is occurring and is due at least in part to anthropogenic activity. Strategies to mitigate climate change harms and adapt to inevitable climate change-induced consequences are influencing legal, political, and human rights frameworks. Thus far, international litigation attempts to hold emitters accountable have been unsuccessful: Tuvalu’s threat to sue the United States and Australia at the International Court of Justice, and the Inuit’s petition to the Inter-American Commission on Human Rights were both hampered by procedural and substantive legal issues. Perhaps in response, the United Nations and …
The Singapore Chill: Political Defamation And The Normalization Of A Statist Rule Of Law, Cameron Sim
The Singapore Chill: Political Defamation And The Normalization Of A Statist Rule Of Law, Cameron Sim
Washington International Law Journal
Recent cases involving opposition politicians and foreign publications, in which allegations of corruption leveled against both the executive and the judiciary were found to be defamatory and in contempt of court, struck at the heart of Singapore’s ideological platform as a corruption-free meritocracy with an independent judiciary. This article examines the implications of these cases for the relationship between the courts, the government, and the rule of law in Singapore. It is argued that judicial normalization of the government’s politics of communitarian legalism has created a statist and procedural rule of law that encourages defamation laws to chill political opposition. …
Addressing The Overrepresentation Of The Maori In New Zealand's Criminal Justice System At The Sentencing Stage: How Australia Can Provide A Model For Change, Joanna Hess
Washington International Law Journal
New Zealand’s 2002 Sentencing Act provides several ways a sentencing court may take an offender’s cultural or ethnic background into account. Given the disproportionate rate of recidivism among New Zealand’s indigenous Maori offenders and international and domestic concerns regarding this problem, the Act’s provisions offer one method for addressing and mitigating this issue. However, these sentencing provisions remain largely unknown or underused. This comment argues that in order to tackle these concerns, left unaddressed by the current Sentencing Act, New Zealand should restructure its sentencing provisions to follow the legislative model that is developing in Australian states, particularly the model …
China's Compliance With International Law: What Has Been Learned And The Gaps Remaining, Roda Mushkat
China's Compliance With International Law: What Has Been Learned And The Gaps Remaining, Roda Mushkat
Washington International Law Journal
Chinese willingness and ability to play by the rules in the global arena is a critical issue that has long loomed large on the academic and policy agendas. A substantial body of knowledge has been built in the past two decades, shedding considerable light on key dimensions of the question. However, there is an apparent need to fine-tune the approach pursued thus far by seeking greater methodological robustness and better theoretical elucidation. Data collection procedures must be anchored more firmly in principles of scientific inquiry, providing a solid empirical foundation for reliable and valid generalizations, and single-cause explanations need to …
Regular Takings Or Regulatory Takings?: Land Expropriation In Rural China, Valerie Jaffee Washburn
Regular Takings Or Regulatory Takings?: Land Expropriation In Rural China, Valerie Jaffee Washburn
Washington International Law Journal
This article takes as its starting point the recent spate of unrest in rural China over government takings of rural, agricultural land. Though the popular and scholarly press has paid a great deal of attention to this issue, few analyses have explored in depth the institutional and legal framework surrounding it. This piece first attempts such an exploration and concludes that the underlying issues have as much to do with China's national land use regulatory system as they do with the behavior of local governments that seize privately-farmed land for other uses. In fact, it is more productive to see …
Patent Protection Of Medical Records—Focusing On Ethical Issues, Yūsuke Satō, Jiameng Kathy Liu
Patent Protection Of Medical Records—Focusing On Ethical Issues, Yūsuke Satō, Jiameng Kathy Liu
Washington International Law Journal
The following is a translation of “Patent Protection of Medical Methods—Focusing on Ethical Issues,” an article written by Professor Yūsuke Satō in the June 2007 issue of the Japanese periodical Annual of Industrial Property Law. In Japan, despite the lack of an explicit statutory prohibition, methods of medical treatment have never been patentable. The Japan Patent Office (“JPO”) has rejected patenting medical processes on ethical grounds, interpreting that they do not fulfill the statutory requirement of “industrial applicability” in the main sentence of Article 29, Section 1 of the Patent Act, and courts have been confirming this practice. In light …
Explaining Constitutional Review In New Democracies: The Case Of Taiwan, Nuno Garoupa, Veronica Grembi, Shirley Ching-Ping Lin
Explaining Constitutional Review In New Democracies: The Case Of Taiwan, Nuno Garoupa, Veronica Grembi, Shirley Ching-Ping Lin
Washington International Law Journal
This paper extends the empirical analysis of the determinants of judicial behavior by considering the Taiwanese case. Taiwan is a particularly interesting case because the establishment and development of constitutional review corresponds to a political transition from an authoritarian regime dominated by one party to an emerging democracy. We test the attitudinal hypothesis by making use of a new dataset of ninety-seven decisions issued by the Taiwanese constitutional court in the period between 1988 and 2008. The attitudinal hypothesis is that the Taiwanese constitutional judges respond to party interests, either because their preferences coincide with the appointer or because they …
An Alternative To Impact Litigation In China: The Procurator As A Legal Avenue For Cases In The "Private Family Sphere" Of Domestic Violence, Hai-Ching Yang
An Alternative To Impact Litigation In China: The Procurator As A Legal Avenue For Cases In The "Private Family Sphere" Of Domestic Violence, Hai-Ching Yang
Washington International Law Journal
Impact litigation, a popular technique among non-governmental organizations, while yielding numerous benefits, exercises limited influence over traditional family matters in China, like those of domestic violence. A closer examination of the factors attributed to the failure of the domestic violence case litigated by the Peking University’s Center for Women Law Studies and Legal Aid Services highlights the need to explore the potential of the procurator. As cases and events show “family matters” transgressing from the private to the public sphere and as setbacks continue to plague non-governmental organizations in their struggle to advance social causes, the institutionalized procurator can utilize …
Death By A Thousand Cuts: Incorporating Cumulative Effects In Australia's Environment Protection And Biodiversity Conservation Act, Jessica T. Dales
Death By A Thousand Cuts: Incorporating Cumulative Effects In Australia's Environment Protection And Biodiversity Conservation Act, Jessica T. Dales
Washington International Law Journal
The Environment Protection and Biodiversity Conservation Act 1999 (“EPBCA” or “the Act”) is the Australian government's keystone piece of environmental legislation. The EPBCA provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities, and heritage places—defined in the Act as matters of National Environmental Significance (“NES”). The Act comes into play when a proposed action has the potential to have a significant impact on a matter of national environmental significance. Although it has played a vital role in protecting Australia’s environment, the EPBCA does not explicitly address the cumulative impact of multiple actions on …
Climate Refugees Require Relocation Assistance: Guaranteeng Adequate Land Assets Through Treaties Based On The National Adaptation Programmes Of Action, Holly D. Lange
Washington International Law Journal
Rising ocean levels in the South Pacific threaten thousands of inhabitants with displacement. Many of these small Pacific island states lack available land to internally accommodate displaced individuals. Thus, thousands of “climate refugees” will be forced to move off their island homes and, without provisions of adequate land rights, will most likely end up in refugee camps in other countries. Climate change exemplifies an inherently global challenge. Developed countries produce disproportionately more greenhouse gases, and developing countries lack resources to adequately respond to climatic displacement. International treaties establish a legal responsibility to assist developing states adapt to climate change. However, …
The Emergence Of Hollywood Ghosts On Korean Tvs: The Right Of Publicity From The Global Market Perspective, Hyung Doo Nam
The Emergence Of Hollywood Ghosts On Korean Tvs: The Right Of Publicity From The Global Market Perspective, Hyung Doo Nam
Washington International Law Journal
The Right of Publicity is both a cultural based property and a corresponding right that protects the entertainment industry in the worldwide market. Discussion of the Right of Publicity, as a preliminary matter, must separate the policy-based approach of the United States from the doctrinal approaches. In order for this discussion to be carried out, the author considers the Right of Publicity with two new approaches. First, it is the author’s view that the Right of Publicity must be understood in the context of the entertainment market, considering the role of each player and their relationship to each other. Second, …
Transformation Of Land Rights In Indonesia: A Mixed Private And Public Law Model, Daryono
Transformation Of Land Rights In Indonesia: A Mixed Private And Public Law Model, Daryono
Washington International Law Journal
Transformation of land rights from colonial to post-colonial systems in many developing countries was primarily undertaken by two different models: firstly, it was entirely governed by private law to allow voluntary transformation, and secondly, it was under public law where the state placed a tight administrative control during the transformation process. Both models had benefits and limitations, but they generally failed to develop modern property rights systems. A third regime of a mixed private and public law model has been promoted to create balance between private and public orders experienced within Indonesia. The mixed private and public law transformation creates …
Mōri V. Japan: The Nagoya High Court Recognizes The Right To Live In Peace, Hudson Hamilton
Mōri V. Japan: The Nagoya High Court Recognizes The Right To Live In Peace, Hudson Hamilton
Washington International Law Journal
The following is a translation of the Nagoya High Court’s decision in Mōri v. Japan, a case challenging the constitutionality of Japan’s deployment of its Self-Defense Forces (“SDF”) to the Middle East in connection with the United States-led occupation of Iraq. Beginning in December of 2003, Japan deployed ground and air forces of the SDF to the Middle East, including three C-130H “Hercules” transport aircraft which were used to airlift coalition forces and supplies between Kuwait and Baghdad. In response, more than 5,700 citizens, represented by over 800 attorneys, filed lawsuits in eleven district courts across the country in …
Public Welfare, Artistic Values, And The State Ideology: The Analysis Of The 2008 Japanese Supreme Court Obscenity Decision On Robert Mapplethorpe, Yuri Obata
Washington International Law Journal
On February 19, 2008, the Japanese Supreme Court delivered a decision declaring that a collection of photographs by the late American photographer Robert Mapplethorpe did not violate obscenity laws in Japan. The fact that the Japanese Supreme Court publicly found close-up and detailed images of male genitalia in Mapplethorpe’s work no longer obscene perhaps makes the decision a landmark one since the present-day restriction of sexually explicit expression in Japan respected the obscenity standard from the 1957 precedent, the Lady Chatterley’s Lover decision, which ruled that the translation of D. H. Lawrence’s Lady Chatterley’s Lover was obscene. However, close reading …
The Misapplication Of Leung Kwok Hung In Hong Kong: Authorizing The Rationality Requirement For Textually Absolute Rights, Albert Connor Buchman
The Misapplication Of Leung Kwok Hung In Hong Kong: Authorizing The Rationality Requirement For Textually Absolute Rights, Albert Connor Buchman
Washington International Law Journal
The Hong Kong Bill of Rights Ordinance (BORO) guarantees many fundamental rights to Hong Kong’s permanent residents. In these constitutionally significant statutes, two types of rights exist: 1) textually qualified rights, which contain qualifying language indicating for what purposes a legislated restriction is permissible, such as when necessary for national security, public order, public health or morals, and 2) textually absolute rights, which contain no language indicating when a legislated restriction on that right is permissible. In Leung Kwok Hung & Others v. HKSAR, the Hong Kong Court of Final Appeal formulated a rationality requirement for when restrictions are …
The Displaced Residents' Right To Relocation Assistance: Toward An Equitable Urban Redevelopment In South Korea, Jihye Kim
Washington International Law Journal
Major urban redevelopment projects are currently on-going to beautify the urban landscape in Seoul, which is the most densely populated metropolitan area of South Korea. In this process, massive acquisition of homes has taken place, displacing many residents who are now demanding relocation assistance. South Korean law imposes obligations upon developers to provide relocation assistance for displaced residents. However, vagueness in the statutory language causes not only confusion in the implementation of the law, but has also led to a Supreme Court decision denying displaced residents’ legal right to relocation assistance. This interpretation further expanded developer’s discretion in carrying out …
Fee Simple Estate And Footholds In Fishing: The Australian High Court's Formalistic Interpretation Of The Aboriginal Land Rights Act, Heather Ahlstrom Coldwell
Fee Simple Estate And Footholds In Fishing: The Australian High Court's Formalistic Interpretation Of The Aboriginal Land Rights Act, Heather Ahlstrom Coldwell
Washington International Law Journal
The coast of the Northern Territory in Australia boasts some of the world’s best fishing and hosts a lucrative commercial fishing industry. The Northern Territory is also home to over 50,000 Aboriginal people who rely on these waters for their subsistence and livelihood. However, the Aboriginal population is effectively barred from participating in the commercial fishing industry by Territory regulations and economic disadvantage. In July 2008, ten years of litigation over access to coastal waters adjoining Aboriginal land in the Northern Territory culminated with the High Court’s decision in Northern Territory of Australia v. Arnhem Land Aboriginal Trust. The …
Bank Privitization In Vietnam: Examining Changes To Management In Vietnam's New Banking Law, Decree No. 59/2009/Nd-Cp, George B. Radics
Bank Privitization In Vietnam: Examining Changes To Management In Vietnam's New Banking Law, Decree No. 59/2009/Nd-Cp, George B. Radics
Washington International Law Journal
Due to its WTO obligations, by 2010 Vietnam must open its banking system to the world. As a result, the nation attempted to drastically modernize its state owned banks through partial privatization. This partial privatization, locally translated as equitization, proposed serious challenges to the existing legal infrastructure facilitating banks. To cope with these new challenges, in September 2009, Vietnam’s new banking law, Decree 59/2009/ND-CP, was passed. An important change in the new banking law is its stricter regulation on the qualifications of managers. It is suspected that such regulation signals the nation’s resistance to surrender control over its banks and …
Disproportionate Disenfranchisement Of Aboriginal Prisoners: A Conflict Of Law That Australia Should Address, Megan A. Winder
Disproportionate Disenfranchisement Of Aboriginal Prisoners: A Conflict Of Law That Australia Should Address, Megan A. Winder
Washington International Law Journal
In 2006, Australia’s Parliament banned all prisoners from voting. A year later, Vickie Lee Roach, a female prisoner of Aboriginal descent, challenged the blanket ban promulgated in the 2006 amendment to the Commonwealth Electoral Act of 1918 (“Electoral Act”). Vickie won, but in a limited way. The High Court found an implied right to vote in the Australian Constitution, but held that Parliament could limit such voting, as it did in the Electoral and Referendum Amendment of 2004 (“E & R Amendment”), disenfranchising any prisoner serving three or more years in jail. This Comment argues that the E & R …
Barricades And Checkered Flags: An Empirical Examination Of The Perceptions Of Roadblocks And Facilitators Of Settlement Among Arbitration Practitioners In East Asia And The West, Shahlaw F. Ali
Washington International Law Journal
Contemporary research on roadblocks and facilitators of settlement has thus far been framed by standard economic modeling and distributive bargaining theories. Each of these frameworks provides helpful insights into those elements that assist or hinder the settlement process. However, each of these models has thus far not examined how particular roadblocks and facilitators of settlement operate in the context of international commercial arbitration proceedings from a comparative cross-cultural perspective. How diverse regions approach roadblocks and facilitators of settlement in the context of the integration of global markets is a new arena for research and practice. To date, most research on …
Islam, The State And The Constitutional Court In Indonesia, Simon Butt
Islam, The State And The Constitutional Court In Indonesia, Simon Butt
Washington International Law Journal
Indonesia is home to more Muslims than any other country. Yet it is not an Islamic state and is unlikely to become one, despite the strong and sustained urgings of some Muslim groups. Indonesian Islam is, like Indonesian society itself, dynamic and diverse, accommodating a wide variety of practices and beliefs. One area of contention between conservative Muslims on the one hand, and the state (supported by many more moderate Muslims) on the other, is the extent to which Islamic law should be recognised, applied and enforced by institutions of state. The Indonesian government's response has generally been to limit …
Hong Kong's Discriminatory Air Time: Family Viewing Hours And The Case Of Cho Man Kit V. Broadcasting Authority, Lauren E. Sancken
Hong Kong's Discriminatory Air Time: Family Viewing Hours And The Case Of Cho Man Kit V. Broadcasting Authority, Lauren E. Sancken
Washington International Law Journal
Hong Kong’s long standing commitment to media and press freedom came under question when the Broadcasting Authority issued a ruling against a television show about same-sex couples. In deciding Cho Man Kit v. Broadcasting Authority, the Court of First Instance affirmed that sexual orientation must be afforded freedom of expression in public broadcasting. However, the Court found that the Broadcasting Authority had lawfully ruled that the show be excluded from family viewing hours. Though the opinion was in many ways a legal victory for homosexuals in Hong Kong, this Comment argues that the family viewing hours ruling undermines the …
An Ill Wind: Air Pollution In The Pearl River Delta, Caitlin Morray
An Ill Wind: Air Pollution In The Pearl River Delta, Caitlin Morray
Washington International Law Journal
Marine transport is an efficient and cost-effective way to transport goods around the world; at least ninety percent of all global trade is served by the shipping industry and shipping trade is expected to triple in the next two decades. However, because of the poor quality of the fuel used by the shipping industry, ocean-going ships disproportionately impact the environment and human health. The shipping industry is presently estimated to generate almost thirty percent of the world’s smog-forming nitrogen oxide emissions and nearly ten percent of sulfur dioxide emissions that cause acid rain and deadly fine particles. The Pearl River …
Curbing Rent-Seeking And Inefficiency With Broad Takings Powers And Undercompensation: The Case Of Singapore From A Givings Perspective, Jianlin Chen
Washington International Law Journal
Conventional discourses on the perils of weak property rights vis-à-vis government takings have failed to account for and respond to the rent-seeking and inefficiency problems of government actions. Singapore, with its broad takings powers, coupled with express undercompensation, has not suffered from the predicted widespread rent-seeking and inefficiency. This case study of Singapore from a givings perspective demonstrates the importance of imposing a fair charge on the various kinds of givings in curbing rent-seeking and inefficiency. There are also additional benefits of having a healthy fiscal budget and more equitable taxation arising from Singapore’s givings regime. The key normative implication …
An Examination Of The Philippines' Anti-Terror Law—Suaviter In Modo, Fortiter In Re, Brent H. Lyew
An Examination Of The Philippines' Anti-Terror Law—Suaviter In Modo, Fortiter In Re, Brent H. Lyew
Washington International Law Journal
The Philippines is rife with competing struggles for rights of self-determination and international terrorist networks. For years, the Philippine government prosecuted suspected terrorists without an anti-terror law. The absence of an express criminal violation for acts of terrorism led to a blurred distinction between punishing terrorists and punishing secessionists. Responding to public outcry that the Philippine government was violating human rights by punishing secessionists unjustly, the United Nations conducted an investigation. This investigation led to the placement of the Philippine government on the United Nations’ human rights watch list. The Philippine legislature, shortly thereafter, passed the Human Security Act of …