Comparative and Foreign Law Commons^™

The Rule-Outcome Paradox, Madness Cascades And The Fog Of Preemption: Seeking The Best Rule For Use Of Force, David D. Caron

UC Law SF International Law Review

The National Security Strategy emphasizes outcomes as opposed to process. This paper discusses the differences between those who value process and those who seek immediate answers to a dangerous situation presented before them, particularly in relation to the Bush Administration's actions in Iraq. Those who value process speak in terms of the law and look to see how actions will effect the future. Those who value outcomes will emphasize the reality of the moment. These viewpoints divide the reactions to the Bush Administration's threat prevention use of force doctrine.

Is Capitalism Un-American - An Analysis Of Corporate Inversions And Expatriation Proposals In Response, Eric Tak Han

UC Law SF International Law Review

Reincorporating companies have been called "Benedict Arnold corporations" by many U.S. politicians. However, reincorporation (corporate inversion) reduces a corporation's costs, and therefore, maximizes its profits. This note discusses the tax benefits corporations receive if they reincorporate outside of the United States, and suggests that this reincorporation does not cause a loss of jobs; rather, the decision not to reincorporate may lead to a loss of jobs in the United States, because these domestic corporations cannot compete on the global market. This note looks at the U.S. tax system by comparing two corporations, Tyco International Inc., a company that did reincorporate, …

Venezuela: How A Hydrocarbons Law Crippled An Oil Giant, Stacy Rentner

UC Law SF International Law Review

In November 2001, Venezuelan president Hugo Chavez Frias unilaterally enacted the new Decreto con Fuerza de Ley Organica de Hidrocarburos (Hydrocarbons Law), which completely restructured the oil industry, the driving force of Venezuela's economy, for the first time in nearly 60 years. This single-handed restructuring of the country's central industry outraged Venezuelans and proved to be the final blow to Chavez's already waning popularity. In an attempt to convince Chavez to step down from the presidency, Venezuelan oil workers initiated a strike, which was accompanied by a national work stoppage in all areas of the economy. February 2003 marked the …

Forum Selection For International Dispute Resolution In China - Chinese Courts Vs. Cietac, William Heye

UC Law SF International Law Review

The large volume of foreign-invested entities in China has created a need for reliable dispute resolution. Chinese law does not allow for foreign courts or foreign arbitration; as a result, foreign-invested entities must chose between the Chinese courts and the Chinese International Economic Arbitration Commission. However, many foreign parties are skeptical of the Chinese courts, and have chosen arbitration. This note suggests that not only may a satisfactory outcome for a foreign party be possible in the Chinese courts, but that the Chinese courts may be a better option for foreign-invested entities seeking to prevail in a suit against a …

After Grutter Things Get Interesting! The American Debate Over Affirmative Action Is Finally Ready For Some Fresh Ideas From Abroad, Clark D. Cunningham

Faculty Publications By Year

No abstract provided.

Lessons From The French Funding Debate, Kathryn L. Moore

Law Faculty Scholarly Articles

The French retirement system, like the American social security system, is facing long-term funding difficulties. As a result, the French are debating whether to expand the role of pre-funded retirement plans. The economic arguments presented in this debate are virtually identical to the economic arguments presented in the American debate on whether the American social security system should be partially privatized.

The French and American debates, however, diverge once history and ideology are considered. The French have a history of failed funded pensions in contrast to the United States where the failure of prominent underfunded pension led to the enactment …

Introduction: Brief Of Amici Curiae, William S. Dodge

UC Law SF International Law Review

No abstract provided.

Brief Of Professors Of Federal Jurisdiction And Legal History As Amici Curiae In Support Of Respondents, Nicholas W. Van Aelstyn, William S. Dodge

UC Law SF International Law Review

No abstract provided.

The Innovative German Approach To Consumer Debt Relief: Revolutionary Changes In German Law, And Surprising Lessons For The United States, 24 Nw. J. Int'l L. & Bus. 257 (2004), Jason Kilborn

UIC Law Open Access Faculty Scholarship

No abstract provided.

Marbury V. Madison And European Union "Constitutional" Review, George A. Bermann

Faculty Scholarship

The U.S. Supreme Court's decision in Marbury v. Madison specifically raises the question of the legitimacy of a "horizontal" species of judicial review, that is, review by courts of the exercise of powers by the coordinate branches of government. The same question could be asked with respect to judicial review in the European Union. More particularly, how problematic or contestable has "horizontal" judicial review been within the European Union as a matter of principle? And, irrespective of its contestability, how have the courts of the European Union exercised "horizontal" review? We will find, however, that it is not the "horizontal" …

Choice As Regulatory Reform: The Case Of Japanese Corporate Governance, Ronald J. Gilson, Curtis J. Milhaupt

Faculty Scholarship

The fact of a small number of hostile takeover bids in Japan the recent past, together with technical amendments of the Civil Code that would allow a poison pill-like security, raises the question of how a poison pill would operate in Japan should it be widely deployed. This paper reviews the U.S. experience with the pill to the end of identifying what institutions operated to prevent the poison pill from fully enabling the target board to block a hostile takeover. It then considers whether similar ameliorating institutions are available in Japan, and concludes that with the exception of the court …

Brief Of Alain De Foucauld As Amicus Curiae In R.M.S. Titanic, Inc. V. The Wrecked And Abandoned Vessel, John Paul Jones

Law Faculty Publications

From the Summary of Argument:

The court below erred in its judgment that the procès verbal of October 20, 1993 should be refused recognition because it is contrary to French law. Article 13 of Decree No. 61-1547 (Dec. 21, 1961) does empower a maritime affairs administrator to award goods to a salvor under the conditions of this case, and there is no basis, in the record or in comity, for a conclusion to the contrary. Legislative acts in Canada and the United Kingdom affording administrative officers in those countries similar powers in cases of wreck and salvage persuade that, to …

The Battle To Establish An Adversarial Trial System In Italy, William T. Pizzi, Mariangela Montagna

Michigan Journal of International Law

This Article is intended to bring the U.S. legal community up to date on the attempt in Italy to put in place a more accusatorial trial system. The Article is divided into three sections. Section I describes the central provisions of the Code of Criminal Procedure that was adopted in 1988. It shows that a close look at the Italian system reveals that it was never intended to be an exact model of either the U.S. or English trial systems, because it always contained central features that are found in civil law systems on the continent. Rather, the changes in …

Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr.

Michigan Journal of International Law

This Article asserts that judicial exchange rather than dominance has inherent advantages as a technique for evolving a global legal culture. For insight into the global task, the Article looks first at an internecine struggle within the continental system. For further background, it describes how the U.S. Supreme Court has accommodated deviations from the basic legal model in U.S. administrative law as well as other internal U.S. legal systems. The supranational tribunals in the European setting and U.S. Supreme Court have shown the capacity to engage in dialogues over diverse legal philosophies. These experiences demonstrate the advantages of a mix …

The Political Economy Of Rule Of Law Reform In Developing Countries, Ronald J. Daniels, Michael Trebilcock

Michigan Journal of International Law

In this paper, the authors briefly review the recent experience with rule of law reform initiatives in Latin America, Africa, and Central and Eastern Europe, drawing on more detailed case studies by the authors. The authors are currently working on a similar case study on rule of law reform experiences in Asia.

What Can The Rule Of Law Variable Tell Us About Rule Of Law Reforms?, Kevin E. Davis

Michigan Journal of International Law

In 2001 per capita income in Haiti was $480, the infant mortality rate was seventy-nine per 1000 live births and the illiteracy rate (age fifteen and over) hovered around fifty percent. By comparison, in the United States, less than two hours flying time away, the per capita income was $34,280, the infant mortality rate was seven per 1000 live births, and the illiteracy rate was negligible. Understanding the reasons why these sorts of disparities in important measures of development arise and persist is one of the greatest challenges in all of the social sciences.

Traditional Hindu Law In The Guise Of 'Postmodernism:' A Review Article, Donald R. Davis Jr.

Michigan Journal of International Law

Review of Hindu Law: Beyond Tradition and Modernity by Werner F. Menski

Forum Non Conveniens: "Availability" And "Adequacy" Of Latin American Fora From A Comparative Perspective, Alejandro M. Garro

University of Miami Inter-American Law Review

No abstract provided.

Querying Lawrence, Berta E. Hernández-Truyol

UF Law Faculty Publications

In 2003, the Supreme Court in the landmark decision Lawrence v. Texas found a Texas law, banning homosexual, but not heterosexual, sodomy to be unconstitutional. Thus, Lawrence ended the Bowers era in which morality was deemed to be a justification for discrimination against gays and lesbians. While the decision did bring to United States Constitutional analysis the radical idea that gays and lesbians are people too, it stopped short of addressing the real problem the case presents--the existence of a second-class citizenry. This Article examines the Lawrence decision in light of both the international, regional, and foreign jurisprudence and the …

Comparative Legal Responses To Terrorism: Lessons From Europe, Jeremie J. Wattellier

UC Law SF International Law Review

After September 11, 2001, the U.S. Congress and President initiated legal changes to combat terrorism. In the late 20th century, Europe also experienced terrorist attacks on its soil and initiated legal adaptations. Europe's legal history with terrorism shows that harsh procedure-stripping rules do not stop terrorism and come at great costs in civil liberties and legal clout. More procedural safeguards would bring the U.S. legal response back in line with its traditional legal values while still providing a way to fight terrorism. This note investigates the European legal response to its terrorist attacks-measuring successes and gauging costs where possible-and evaluates …

Trade Treaty Threats And Sub-National Sovereignty: Multilateral Trade Treaties And Their Negligible Impact On State Laws, David I. Spector

UC Law SF International Law Review

Advocates of free trade extol the virtues of trade without borders, while opponents decry its abysmal consequences. While debates about the benefits and detriments of free trade seem never-ending, there has been comparatively little discussion of the actual impact of international trade obligations on sub-national components of federal governments. Although the relationship between America's trade treaties and the policies of state governments has become a more visible issue in international trade, relatively little is known about how these international trade obligations really shape state law-making among the fifty U.S. states. This Note examines how international trade treaties have actually impacted …

Introduction 21st Annual Scholarly Programs: The Future Of Force: Waging War In The 21st Century

UC Law SF International Law Review

This year's 21st Annual Scholarly Programs featured two events that brought leaders in the field together to discuss the legal bases for waging war in the 21st Century. The first event, the Scholars Forum, featured Professor Thomas M. Franck, who discussed his paper, Preemption, Prevention and Anticipatory Self-Defense: New Law Regarding Recourse to Force? Professor Diane Marie Amann, Professor David D. Caron, Professor Joel R. Paul and Judge Abraham D. Sofaer responded to Professor Franck's paper and offered their own perspectives. Professor Naomi Roht-Arriaza served as the mediator. The second event, the Rudolph B. Schlesinger Memorial Lecture, featured Michael J. …

The Eu Regulation On Insolvency Proceedings: The Need For A Modified Universal Approach, Jully Pae

UC Law SF International Law Review

The growth of cross-border insolvencies has increased with the growth of international business activity. As courts of multiple jurisdictions are implicated, conflict-of-law problems surface. This note examines different theories which purport to overcome these conflict-of-law problems. This note also proposes that a modified universalism theory, as opposed to the dominant universalism theory, is the best solution to the problems which arise from the cross-border insolvencies.

The War On Terrorism: Peru’S Past And Present, A Legal Analysis (2004), Ralph Ruebner, Et Al.

Faculty White Papers

No abstract provided.

Experiments In Comparative Corporate Law: The Recent Italian Reform And The Dubious Virtues Of A Market For Rules In The Absence Of Effective Regulatory Competition, Marco Ventoruzzo

Faculty Scholarship

The article addresses a sweeping Reform of corporate law which was enacted by the Italian government in 2003 and came into effect on January 1, 2004. The new statutory regulation significantly increases freedom of contract in corporate law, relying on the idea that the development of an efficient market for rules will allow the "natural selection" of the rules that better suit the need of the different stakeholders. Together - and to some extent to compensate for - this greater freedom of contract, new protections for minority shareholders have also been implemented. The reform also imports into the Italian legal …

The Nhl Labour Dispute And The Common Law, The Competition Law, And Public Policy, Stephen F. Ross

Faculty Scholarship

This article develops the claim that, absent an agreement with the union, the imposition of a salary cap or punitive luxury tax would constitute an unreasonable restraint of trade, as well as a violation of section 48 of the Competition Act that the Canadian courts should enjoin. The article analyzes decisions of Canadian and other British Commonwealth courts concerning general principles of the common law as well as their specific application in the context of the sports industry. Second, the paper discusses why the same standard applies to restraints challenged under section 48 of the Competition Act. Next. the …

The Advantages Of The Civil Law Judiciary As The Model For Emerging Legal Systems, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …

Regulatory Frameworks In International Law, Hilary Charlesworth, Christine M. Chinkin

Book Chapters

Regulatory theory is concerned with how various forms of regulation, including law, govern social interaction. Much of the theoretical work on legal regulation has been developed in the context of domestic law. This chapter examines international law in the particular setting of regulation of outsider entities, such as failed and nascent states, that is where international regulation fills the vacuum caused by the collapse of domestic institutions and the rule of law. Through a brief examination of international regulation in Bosnia–Hercegovina and East Timor, this chapter asks what light a regulatory lens sheds on international law. Drawing on Hugh Collins's …

On International And Interdisciplinary Legal Ethics Scholarship, W. Bradley Wendel

Cornell Law Faculty Publications

"Legal Ethics is an international and interdisciplinary journal dedicated to the field of legal ethics." The mission statement of this journal poses three concise challenges for scholars in this discipline: To define the domain of legal ethics, to study it from a perspective that is valid across jurisdictional boundaries, and to incorporate the insights of related disciplines. As befits an emerging and exciting field, lawyers and university faculty throughout the English- speaking common-law world have begun to engage with all three of these problems. The book reviews section of Legal Ethics has highlighted the publication of many of the …