Comparative and Foreign Law Commons^™

Second Chance For Justice: Reevaluation Of The United States Double Jeopardy Standard, 40 J. Marshall L. Rev. 371 (2006), Andrea Koklys

UIC Law Review

No abstract provided.

Reconceptualizing Domestic Violence In India: Economic Abuse And The Need For Broad Statutory Interpretation To Promote Women's Fundamental Rights, Pami Vyas

Michigan Journal of Gender & Law

This Article explores the reconceptualization of domestic violence in India through an analysis of the economic abuse provision of the recently passed Domestic Violence Act. The author argues that although India has taken a significant step towards advancing women's rights by characterizing economic abuse as a form of domestic violence, effective implementation of the law requires a broad interpretation of the economic abuse provision. To be consistent with the purpose of the statute and India's constitutional and international human rights obligations, "economic abuse" must be interpreted broadly to include the deprivation of a woman's control over her economic resources. Economic …

Aiding Clinical Education Abroad: What Can Be Gained And The Learning Curve On How To Do So Effectively, Leah Wortham

Scholarly Articles

The author advocates donor support for clinical education projects abroad and outlines the minimal requisites that she would have for such projects - direct experience with disadvantaged clients, faculty involvement, and sincerity and integrity of organizers. She cautions against funders and consultants pressing new clinics to fit American clinical models. She provides sample reporting questions that would require projects to reflect on goals sought and results achieved. She draws lessons for efforts to assist clinics abroad from critiques of the law and development movement (LDM), the last major international initiative in legal education reform; more recent efforts termed the New …

Islamic Principles Governing International Trade Financing Instruments: A Study Of The Morabaha In English Law, Jason C. T. Chuah

Northwestern Journal of International Law & Business

The past years have seen a clear and incontrovertible rise in the use of international financial and commercial instruments expressed to be governed by Islamic principles. Banks and other commercial entities in Islamic and non-Islamic countries are increasingly aware of the commercial need to offer services which are specifically tailored to meet this sector of the international market. Disputes over the interpretation and application of such instruments invariably arise. English courts are not insulated from such disputes, given that the City of London is at the forefront of many international commercial and financial dealings. As a matter of law, the …

Illegal Peace?: An Inquiry Into The Legality Of Power-Sharing With Warlords And Rebels In Africa, Jeremy I. Levitt

Michigan Journal of International Law

This Article represents the first conscientious attempt to address these questions, present a conceptual framework for examining the legal and political efficacy of coercing democratically constituted governments into sharing power, and define a lawful basis or approach to sharing power when governments are confronted with the aforementioned scenario. The Article is polemical and questions the dominant logic that political power-sharing is lawful, legitimate, and unequivocally serves the public good, arguing that power-sharing deals that ignore controlling rules are unlawful and not viable.

Law, Norms, And Legal Change: Global And Local In China And Japan, Nicholas C. Howson, Mark D. West

Michigan Journal of International Law

The editors of the Michigan Journal of International Law have boldly brought together four articles and commentary that focus on different aspects of the same problem in China and Japan: the relationship between domestic legal change and foreign and/or "international" law and regulation, "soft" agreements, norms, or even cultural practices. The compilation is bold in part because scholarship on change in East Asian law and legal systems often suffers from one of two defects. First, it often focuses on purely domestic phenomena in only one system, ignoring the comparative connections. Second, scholars often attack the problem from an exclusively comparative …

Assuring The Flow: Maritime Security Challenges And Trade Between The U.S. And China, Joshua A. Lindenbaum

Richmond Journal of Global Law & Business

No abstract provided.

The Wto Internet Gambling Dispute As A Case Of First Impression: How To Interpret Exceptions Under Gats Article Xiv(A) And How To Set The Trend For Implementation And Compliance In Wto Cases Involving “Public Morals” And “Public Order” Concerns?, Albena P. Petrova

Richmond Journal of Global Law & Business

No abstract provided.

Signed, Sealed, Delivered, And Then…: An Evaluation Of The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States, Alexandra R. Harrington

Richmond Journal of Global Law & Business

No abstract provided.

The Recasting Of Copyright & Related Rights For The Knowledge Economy, P Bernt Hugenholtz, Mireille Van Eechoud, Stef J. Van Gompel, Natali Helberger, Lucie Guibault

Reports & Public Policy Documents

In the European Union, copyright law is increasingly a matter for the European legislator. Member states retain ever less competence to regulate intellectual property rights.

This study critically examines the 'acquis communautaire' in the field of copyright and related (neighbouring) rights, focusing on the seven copyright specific directives, from the 1991 Software directive to the 2001 Information Society Directive. It also deals with distinct issues that are on the agenda of the EU: After reviewing arguments for and against the extension of the term of protection of phonograms (sound recordings), the authors conclude there is no convincing case for extending …

Headscarf Stories, Ian Ward

UC Law SF International Law Review

The seemingly intractable issue of headscarves - when they can be worn, and when they cannot - is currently contested in much of Europe. The apparent intractability is a common experience. The purpose of this article is to present three headscarf 'stories,' and in so doing, stress the narrative nature of this intensely moral and political, as well as legal, controversy. Narrativity, it will be suggested, offers a far more effective means of approaching this kind of issue and its inevitable indeterminacies than the simple recourse to blunt legal instrumentation. While the law must, it seems, play a role in …

Majority And Dissent In Intel: Approaches To Limiting International Judicial Assistance, E. Morgan Boeing

UC Law SF International Law Review

No abstract provided.

International Criminal Law: Towards New Solutions In The Fight Against Illegal Arms Brokers, Katharine Orlovsky

UC Law SF International Law Review

In many recent and ongoing civil and international armed conflicts, arms brokers have violated United Nations embargos to deliver arms to known human rights violators in conflict zones. This illegal arms traffic significantly contributes to the commission of atrocities. However, arms brokers, who are uniquely difficult to both regulate and prosecute, continue to enjoy broad impunity under existing international and domestic law. International criminal law has developed legal theories and institutions to address impunity in situations of mass conflict. This note examines the feasibility of prosecuting arms brokers under international criminal law, and whether this growing area of law may …

Essay: Referring To Foreign Law In Constitutional Interpretation: An Episode In The Culture Wars, Mark Tushnet

University of Baltimore Law Review

No abstract provided.

When Are Agreements Enforceable? Giving Consideration To Professor Barnett's Consent Theory Of Contract, James Maxeiner

All Faculty Scholarship

This address considers five points: (1) the place of theory in American contract law; (2) the basic elements of Professor Barnett's theory are; (3) how these elements are similar to Continental law; (4) what it says about the American legal world that Barnett's theory has been discussed without reference to Continental systems; and, finally, (5) why I believe the American model is not a good one for a future European Civil Code but also hope that such a Code will become law.

Compelled Self-Reporting And The Principle Against Compelled Self-Incrimination: Some Comparative Perspectives, Mark Berger

Faculty Works

This article examines the tension between mandatory self-reporting and identification statutes and the right to be free of compelled self-incrimination. The author reviews decisions addressing this issue taken by the European Court of Human Rights ('ECtHR'), the Privy Council, and the Supreme Courts of Canada and the United States. He then analyses applicable public policies and assesses the alternative approaches available to accommodate these conflicting interests.

Note, Sisyphus In A Coal Mine: Responses To Slave Labor In Japan And The United States, Timothy Webster

Faculty Publications

This Note argues that the recent wave of litigation brought by former Chinese slave laborers, while important in its own right, highlights the need for a more comprehensive solution. Although ideally the Japanese Diet will devise its own response to the problem of compensation, the experiences arising from the Holocaust litigation in the United States provide a meaningful yardstick for comparison. In the United States, a large-scale settlement scheme followed, and finalized, numerous lawsuits brought by former forced and slave laborers from World War II Europe. The American response, though based on different circumstances, led to a multibillion-dollar fund that …

Has Conduct In Iraq Confirmed The Moral Inadequacy Of International Humanitarian Law? Examining The Confluence Between Contract Theory And The Scope Of Civilian Immunity During Armed Conflict, 16 Duke J. Comp. & Int'l L. 249 (2006), Samuel Vincent Jones

UIC Law Open Access Faculty Scholarship

No abstract provided.

Land Conflict Management Under A Tree Cropping System: The Case Of Theobroma Cacao In Southwestern Nigeria, E. O. Idowu

Cardozo Journal of Conflict Resolution

General observation and systematic research have consistently indicated that a sizeable portion of farmlands within the cacao growing communities of southwestern Nigeria is tenant-operated. This article will focus primarily on a specific study area within Southwestern Nigeria. Within the study area, the cultivation of cacao, mainly for export, is of primary importance to the farmers. Economic and social activities revolve around the crop with annual festivals and ceremonies held during the periods immediately after the annual sale of the crop. Until 1985, the study area produced about 40% of total Theobroma cacao (cacao) output for southwestern Nigeria. This share has …

Well-Known Seasoned Issuers In Canada, Adam C. Pritchard

Other Publications

The United States Securities and Exchange Commission (SEC) recently adopted a series of rules relaxing the restrictions imposed on public offerings. The largest public companies - defined as “well-known seasoned issuers” (WKSIs) - received the most extensive regulatory relief. Canada could adopt a version of WKSI status for the top tier of Toronto Stock Exchange (TSX) issuers as part of a streamlined POP system.

Careful consideration must be given, however, as to the appropriate standards for WKSI status in Canada. The standards adopted in the U.S. – US$700 million in market capitalization or US$1 billion in nonconvertible debt issued over …

The Regulation Of Public Auditing In Canada And The United States: Self-Regulation Or Government Regulation?, Adam C. Pritchard, Poonam Puri

Other Publications

Auditors play an important role as gatekeepers to public capital markets. By attesting to the accuracy of a company’s financial statements, the auditor lends its credibility to that company and its financial health.

Both market and legal mechanisms play a role in ensuring that auditors perform high quality audits. Reputation is critical in the market for auditors. In addition, potential legal liability to issuers and investors arising from contract, tort, and statutory securities laws creates incentives for auditors to conduct high quality audits. Potential discipline by professional self-regulatory bodies also plays a part. Striking the appropriate balance among market-based, legal, …

Forces Driving And Shaping Legal Training Reform In Japan, Daniel H. Foote

Articles

After canvassing the history of, and rationale for, legal training reform, the article examines the recommendations of the Justice System Reform Council. It then examines some of the forces that led to the reforms; some of those forces that helped shape the reforms; and the major aspects of the reforms themselves. The second half of the article undertakes an initial assessment of the first year of operation of the new system, focusing on the University of Tokyo, and based upon the author's first-hand experience.

The Supreme Constitutional Court Of Egypt On Islamic Law, Veiling And Civil Rights: An Annotated Translation Of Supreme Constitutional Court Of Egypt Case No. 8 Of Judicial Year 17, Clark B. Lombardi, Nathan J. Brown

Articles

The jurisprudence of the Supreme Constitutional Court of Egypt is creative and influential in the Arab world. Among its opinions, Case No. 8 of Judicial Year 17, decided on May 18, 1996, is particularly interesting. In this opinion, the SCC argues that a regulation on face-veiling in public schools is consistent not only with Islamic law, but with the Egyptian Constitution's guarantees of freedom of religion and freedom of expression. Not only does it illustrate the SCC's approach to Islamic legal reasoning, but it gives insight into the Court's views with respect to civil and political rights. The case also …

Continuity, Change And Innovation In Emerging Consumer Bankruptcy Systems: Belgium And Luxembourg, 14 Am. Bankr. Inst. L. Rev. 69 (2006), Jason Kilborn

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Hidden Life Of Consumer Bankruptcy Reform: Danger Signs For The New U.S. Law From Unexpected Parallels In The Netherlands, 39 Vand. J. Transnat'l L. 77 (2006), Jason Kilborn

UIC Law Open Access Faculty Scholarship

This Article offers a unique perspective on the heavily revised U.S. consumer bankruptcy law, which went effect on October 17, 2005, in light of a surprising discovery: It turns out that the U.S. consumer bankruptcy system as "reformed" resembles in many critical respects the consumer bankruptcy system in place for the past six years in the Netherlands. As a result of this serendipitous U.S.-Dutch convergence, years of experience under the Dutch consumer debt relief system can provide a rare glimpse into the future of the new U.S. system. The Dutch law in practice has diverged in significant ways from legislative …

Innovation Through Intimidation: An Empirical Account Of Defamation Litigation In China, Benjamin L. Liebman

Faculty Scholarship

Consider two recent defamation cases in Chinese courts. In 2004, Zhang Xide, a former county-level Communist Party boss, sued the authors of a best selling book, An Investigation into China's Peasants. The book exposed official malfeasance on Zhang's watch and the resultant peasant hardships. Zhang demanded an apology from the book's authors and publisher, excision of the offending chapter, 200,000 yuan (approximately U.S.$25,000) for emotional damages, and a share of profits from sales of the book. Zhang sued in a local court on which, not coincidentally, his son sat as a judge.

In 2000, Song Dianwen, a peasant, sued …

The Regulation Of Labor And The Relevance Of Legal Origin, David E. Pozen

Faculty Scholarship

Arguably the most important social science research of the past decade has centered on comparative law and economics. In a celebrated series of articles, the economists Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and intermittent collaborators have explored empirically how a country's legal origin – English common law, French civil law, Germanic code, Scandinavian law, or Soviet socialist law – affects its subsequent institutional and economic development. The common law emerges as the hero of this analysis: Compared with other countries and especially with civil law countries, common law bearers have, ceteris paribus, better legal protection of shareholders and …

Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah

Articles

In October 2005, a group of distinguished tax experts from the European Union and the United States, who had never met before, convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The purpose of the conference was to shed comparative light on the very different approaches taken by the European Court of Justice (ECJ) and the U.S. Supreme Court to the question of fiscal federalism. The conference was sponsored by the U-M Law School, U-M's European Union Center, and Harvard Law School's …

Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson

Faculty Scholarship

On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors' rights and the advent of new technologies, particularly in relation to peer-to-peer networks.

In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular …

Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah

Articles

Last October, a group of distinguished tax experts from the European Union and the United States convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The conference was sponsored by the Law School, the European Union Center, and Harvard Law School's Fund for Tax and Fiscal Research. Attendees from Europe included Michel Aujean, the principal tax official at the EU Commission, Servaas van Thie1, chief tax advisor to the EU Council, Michael Lang (Vienna) and Kees van Raad (Leiden), who run the …