Comparative and Foreign Law Commons^™

A Norms Approach To Jury "Nullification", Joseph Sanders

ExpressO

The paper synthesizes economic and sociological approaches to norms to explain the circumstance under which juries are most likely to substitute their own rules and criteria for that of the law when deciding a case. It concludes that this type of “nullification” is most likely to occur when substantive societal value norms embedded in scripts are contrary to legal rules.

Internalizing European Court Of Human Rights Interpretations: Russia's Courts Of General Jurisdiction And New Directions In Civil Defamation Law, Peter F. Krug

ExpressO

The manuscript examines the steps that Russia's courts of general jurisdiction have taken since 2002 to fashion major changes in Russia's civil defamation law. The critical element in this process has been the courts' internalization of the practice of the European Court of Human Rights in interpreting the freedom of expression provisions in Article 10 of the European Convention on Human Rights, to which Russia acceded in 1998. The internalization movement in the Russian courts began in 2002 in isolated lower court decisions, and culminated in a generally-applicable Decree of the Russian Federation Supreme Court in 2005. The manuscript examines …

The Unexplored Option: Jewish Settlements In A Palestinian State, David M. Phillips

ExpressO

The withdrawal of Israeli settlers and soldiers from the Gaza Strip, the recent Hamas victory in the Palestinian Authority elections, and the forthcoming Israeli elections in which the newly-formed Kadima Party is expected to receive a plurality of the votes have all focused attention upon the fate of Israeli settlements on the West Bank. The present head of the Kadima Party, Acting Prime Minister Ehud Olmert, has even signalled that, if Kadima forms the next Israeli government, Israel will withdraw from many of the settlements on the West Bank, although different statements from different Kadima spokespeople leave ambiguous which settlements …

Exploring The Source Of Transatlantic Antitrust Divergence, Alan J. Devlin

ExpressO

This paper seeks to explore the sources of substantive divergence between the antitrust regimes of the U.S. and EC and to present a framework upon which harmonization could potentially be achieved. While the rise of the Chicago School and post-Chicago theory have merged to ensure a central role for economics in dictating antitrust enforcement in the United States, no such clear standard has emerged in Europe. The consequences for firms operating on a transatlantic basis are potentially severe, as they have to formulate different business strategies depending on which jurisdiction they operate in. An assessment of EC law demonstrates an …

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

Making Chinese Labor Law Work, Sean T. Cooney

ExpressO

Labor abuses in China have drawn international condemnation and led to increasing domestic unrest. Government, business and unions in the United States have insisted that Chinese law needs to be reformed to deal with those abuses but they fail to identify precisely what reforms are required.

This article aims to shift debates about reforming Chinese labor law in the United States to a much greater level of specificity. The discussion focuses on two very prevalent abuses that are purportedly prohibited by existing labor regulation: underpayment of wages and excessive working hours. The article analyses in detail those aspects of China’s …

Informal Economy: Is It A Problem, A Solution Or Both? The Perspective Of The Informal Business, Omar E. Garcia-Bolivar

ExpressO

This paper deals with the informal economy. For many it is a solution, for others it is a problem. What can the law do to incorporate the informal economy into the formal economy? Does it really matter? What are the challenges?

Exporting Western Law To The Developing World: The Troubling Case Of Niger, Thomas A. Kelley

ExpressO

In recent years the West has imposed the Washington Legal Consensus on poor countries throughout the world. Carried out by international “rule doctors,” the Consensus’s goal has been to rationalize and modernize developing countries’ legal systems and thereby prepare them to reap the economic and social benefits of globalization. This paper describes the application of the Washington Legal Consensus to the West Africa Republic of Niger, and concludes that the West has much to learn about effectively exporting its law.

The main flaw in the Washington Legal Consensus is that it ignores the legal traditions that are already in place …

The Privacy Gambit: Toward A Game Theoretic Approach To International Data Protection, Horace E. Anderson

ExpressO

“Privacy” is one of the fastest growing areas of the law, due in part to the explosion of the Internet over the past decade. When we speak of privacy in the Internet age, we typically mean data protection, the regulation of the use of personal information about individuals by private interests, such as corporations. Unfortunately, much of the discourse on the subject adopts a framework more suitable to traditional privacy, an inviolable “right to be let alone” by the state. Rather than create a sacrosanct right against the government, the modern incarnation of privacy actually creates a quasi-property right, where …

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

When The Inquisitorial And Adversary Systems Collide: Teaching Trial Advocacy To Latin American Lawyers, Leonard L. Cavise

ExpressO

The first part of the article reviews the principal differences in the two systems as it affects trial procedure. The article then reviews those aspects of accusatorial trial proceedings that caused the greatest degree of discomfort to the foreign lawyers. Finally, the article attempts to posit a few recommendations that should help not only to ease the transition process but also to anticipate the next level of procedural and substantive obstacles.

Putting Regulation Before Responsibility: Towards Binding Norms Of Corporate Social Responsibility, Thomas F. Mcinerney

ExpressO

Globalization of business has heightened concerns regarding corporate conduct in developing countries. Critics have charged that multinational firms in particular have exported social harms involving labor, the environment, bribery, and human rights to jurisdictions outside of their home countries. Opportunities for regulatory arbitrage and the associated collective action problem such opportunities suggest, highlight the need for strong regulatory responses to these issues. Rather than prioritize the strengthening of national or international regulatory actors to address these social harms, voluntary corporate social responsibility initiatives have emerged as a favored response within the international community. This article undertakes a critical examination of …

Larceny Offenses In Islamic Law , Hisham M. Ramadan

ExpressO

No abstract provided.

Christ, Christians & Capital Punishment, Mark Osler

ExpressO

Last year, I came to a startling conclusion: That the debate over the death penalty in the United States is largely among Christians, but has ignored the capital sentencing which is at the center of that faith. The result of this epiphany is Christ, Christians & Capital Punishment.

In this article, I argue that the story of Christ parallels modern capital practice in many respects: Christ was turned in by a paid informant (Judas), arrested in a strategic manner, given an arraignment and stood mute, was tried, convicted and sentenced, appealed to two separate sovereigns, and finally was denied a …

Essay For The In-Print Symposium On The Myth Of Moral Justice, Stuart A. Scheingold

Cardozo Public Law, Policy & Ethics Journal

Stuart Scheingold responds to Thane Rosenbaum's The Myth of Moral Justice, agreeing with the aspiration to infuse law with moral imagination but critiquing Rosenbaum's oversight of existing moral energy within the legal profession, particularly through cause lawyering. Scheingold argues that Rosenbaum's approach is overly simplistic, failing to account for institutional obstacles and the contested nature of moral discourse, which can lead to conflict rather than harmony. He emphasizes that while moral advocacy, as seen in cause lawyering, can drive positive change, it also faces significant challenges and backlash.

Bond Covenants And Creditor Protection: Economics And Law, Theory And Practice, Substance And Process, William Wilson Bratton

Articles

This article examines contractual protection of unsecured financial creditors in US credit markets. Borrowers and lenders in the United States contract against a minimal legal background that imposes the burden of protection on the lender. A working, constantly updated, set of contractual protections has emerged in response. But actual use of available contractual technology varies widely, depending on the level of risk and the institutional context. The credit markets sort borrowers according to the degree of the risk of financial distress, imposing substantial constraints only on the borrowers with the most dangerous incentives. At the same time, the contracting practice …

Of The Inequals Of The Uruguay Round, Srividhya Ragavan

Faculty Scholarship

Ten years ago, the TRIPs Agreement set a distinct tone in international law by requiring members to prioritize international trade obligations as a means to achieve national goals. Within the next five years, the AIDS crisis highlighted that compromising pressing national responsibilities - like a looming public health crisis - to fulfill international obligations may, in fact, detrimentally affect international trade. Meanwhile, access to medication continues to be an unresolved issue even as we celebrate the tenth anniversary of TRIPs and the end of the transitional period. This Article suggests that the success of TRIPs depends on its ability to …

Judicial Balancing In Times Of Stress: Comparing The American, British, And Israeli Approaches To The War On Terror, Michel Rosenfeld

Cardozo Law Review

No abstract provided.

Understanding Jurisprudential Approaches To Islam, Marc L. Roark

ExpressO

The United States recent deal with a United Arab Emirites Company to operate seven U.S. Ports highlights a growing tension in U.S. and Arabic commercial relations. One tension that has remained unnoticed is the role that U.S Courts play in interpreting Islamic texts when the commercial or legal outcome depends on an understanding of the religious culture. This article describes seven cases that demonstrate various approaches to this problem. This article utilizes an approach by James Boyd White, and suggests that translation or its kin transliteration can help judges in deciding Islamic legal principles.

How Should A Court Deal With A Primary Question That The Legislature Seeks To Avoid? The Israeli Controversy Over Who Is A Jew As An Illustration, Gidon Sapir

ExpressO

Legislative avoidance of principled decisions on substantive questions, by transferring the decision making task to the executive branch, is a frequent scenario. The legislature does this by way of either express, or hidden delegation, i.e. by using ambiguous wording that on the face of it only requires interpretation, but which in fact requires a substantive decision on the matter at stake. The Israeli legislature resorted to the hidden delegation tactic in order to avoid the adoption of a substantive decision in the dispute over the question of: “who is a Jew” - a dispute that has divided Israeli society and …

The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering For Interoperability Purposes, Daniel Laster

ExpressO

As patent protection has emerged to protect software, courts and commentators have mistakenly focused on copyright law and overlooked the centrality of patent preemption to limit contract law where a mass market license which prohibits reverse engineering (RE) for purposes of developing interoperable products leads to patent-like protection. Review of copyright fair use cases on RE and Congress’s policy favoring RE for interoperability purposes in the Digital Millennium Copyright Act reinforce the case for patent preemption. Also, the fundamental freedom to RE embodied in state trade secret law, coupled with federal patent and copyright law and policies, cumulatively should override …

When The Inquisitorial And Adversary Systems Collide: Teaching Trial Advocacy To Latin American Lawyers, Leonard L. Cavise

ExpressO

"When the Inquisitorial and Adversary Systems Collide: Teaching Trial Advocacy to Latin American Lawyers" The first part of the article reviews the principal differences in the two systems as it affects trial procedure. The article then reviews those aspects of accusatorial trial proceedings that caused the greatest degree of discomfort to the foreign lawyers. Finally, the article attempts to posit a few recommendations that should help not only to ease the transition process but also to anticipate the next level of procedural and substantive obstacles.

Gender Equality, Social Values And Provocation Law In The United States, Canada And Australia, Caroline A. Forell

ExpressO

In this article I examine and compare the partial defense of provocation as it applies to domestic homicide in Australia, Canada, and the United States on both the gendered-male basis of jealous rage and gendered-female basis of fear. I explain why substantive equality, prevalent under Canadian constitutional law, has not resulted in woman-friendly provocation rules in Canada and the United States and why Australia is the leader in incorporating substantive equality into its provocation doctrine. I conclude that the main reason why some Australian jurisdictions have abolished provocation and others have female-friendly versions of the doctrine is that, unlike Canada …

On The Legal Construction Of Ethnic Cleansing, Timothy V. Waters

ExpressO

On the Legal Construction of Ethnic Cleansing

Timothy William Waters, Univ. Mississippi School of Law

Abstract

What is the true shape of our commitment to prohibit ethnic cleansing? This Article explores that question by considering a case observers have universally decided does not constitute ethnic cleansing. It examines the recent controversy in the European Union, when Sudeten Germans demanded that the Czech Republic apologize for having expelled them after WWII before being admitted to the EU. Their demands were universally rejected and the legality of the expulsions was reconfirmed by all relevant actors. So what is the consequence for customary …

Equal Treatment Of Foreign Shareholders In Transnational Securities Class Action Against A Foreign Issuer—A Chinese Example, Clark Yao

ExpressO

As the world economy and financial markets become increasingly more integrated, cross-boarder securities transaction becomes a daily event. Because Unite States has the world’s largest and arguably most liquid capital markets, it has attracted a significant number of foreign companies to cross-list their stocks in a U.S. stock exchange. Unavoidably, such transactions will not only bring out fortune, but also disputes between transacting parties. Relying on the powerful federal securities law , U.S. investors who have bought or sold such stocks have routinely sued foreign stock issuers through class action when the stock prices went down, alleging their loss is …

Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato

ExpressO

Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …

Comparative Corporate Governance: Irish, American, And European Responses To Corporate Scandals, Manish Gupta

ExpressO

A comparative review of legislative reactions to corporate scandals such as Enron and WorldCom. This paper examines American, Irish, and European Union legislation meant to deal with regulating corporations.

Extinguishing Security Interests: Secured Claims In Japanese Reorganization Law And Some Policy Implications To The U.S. Law, Wataru Tanaka

ExpressO

This Article examines how secured claims are treated in Japanese business reorganization law, especially in the Civil Rehabilitation Act (Minji saisei ho), which was enacted in 1999 as the new general reorganization regime in Japan. Unlike the U.S. Bankruptcy Act, the Civil Rehabilitation Act does not have automatic stay on secured claims, nor does it allow any modification of secured claims by the rehabilitation plans. However, the Civil Rehabilitation Act has a unique procedure to restrict the rights of secured creditors, which is called “the procedure of extinguishing security interests (tanpo-ken shometsu seikyu tetsuzuki).” This procedure permits a debtor to …

Land Titling: A Mode Of Privatization With The Potential To Deepen Democracy, Bernadette Atuahene

All Faculty Scholarship

Land titling is a form of privatization in that public assets are transferred to private families and individuals. This is unlike other forms of privatization, however, because there is a systematic diffusion of economic and decision making power down to indigent populations rather than out of the country or up to its local elites. In light of this uniqueness, the question I will grapple with in this Article is, can property ownership, achieved through land titling programs, bolster democracy? First, using Peru as an example, I explain the context that necessitated the creation of land titling and the process by …

Australia's "New Arrangements In Indigenous Affairs": A New Approach Or A New Paternalism?, Joshua M. Piper

Washington International Law Journal

The Aboriginal and Torres Strait Islander Commission (“ATSIC”) opened its doors in 1990 with the main objectives of advising the Australian Commonwealth Government (“Government”) on Indigenous policy and providing services for Indigenous communities and individuals. Fifteen years later, with Indigenous living standards still well behind other Australians, the Government deemed ATSIC a failure and abruptly gutted and abolished the Commission. At the same time, the government transitioned to its New Arrangements in Indigenous Affairs program (“New Arrangements”). The New Arrangements are based on two fundamental ideas: better coordination between governments and agencies; and, most important, engaging and empowering Indigenous communities …