Comparative and Foreign Law Commons^™

Outsourcing And The Globalizing Legal Profession, Jayanth K. Krishnan

Articles by Maurer Faculty

The issue of outsourcing jobs abroad stirs great emotion among Americans. Economic free-traders fiercely defend outsourcing as a positive for the U.S. economy while critics contend that corporate desire for low wages solely drives this practice. In this study I focus on a specific type of outsourcing, one which has received scant scholarly attention to date - legal outsourcing. Indeed because the work is often paralegal in nature, many see the outsourcing of legal jobs overseas as no different from other types of outsourcing. But by using as my case studies both the United States and India, the latter which …

Analyzing The Friedman Thesis Through A Legal Lens: Book Review Essay Assessing Thomas L. Friedman's The World Is Flat, Jayanth K. Krishnan

Articles by Maurer Faculty

In his best-selling book, The World Is Flat, Thomas Friedman assesses how globalization has affected the political, economic, and social landscapes of both the developed and developing world. For Friedman, globalization is emboldening people in countries, like in India, to make societal and governmental demands that are similar to those made by Americans in the United States.

This Essay seeks to add a new layer to the debate over Friedman’s flattening-world thesis. Focusing on India, in particular, I shall argue that as the trajectory of India’s economic development appears on the rise, the sad reality is that …

Scholarly Discourse, Public Perceptions, And The Cementing Of Norms: The Case Of The Indian Supreme Court And A Plea For Research, Jayanth K. Krishnan

Articles by Maurer Faculty

For economic and nuclear reasons, India has received considerable attention over the last decade from observers in the United States. But attuned Americans are well-aware of India's rich culture and status as a shining constitutional democracy for most of its post-1947 independent history. For all that India has accomplished, however, its public has long viewed its government officials with great disdain. At the same time, a fascinating norm exists in this society which holds one institution in exceedingly high regard - the Indian Supreme Court.

In this article, I seek to examine what accounts for this counter-intuitive norm. As opposed …

Book Review Of Engaging The Law In China: State, Society, And Possibilities For Justice, Michael Ashley Stein

Faculty Publications

No abstract provided.

A Cuban Connection: Edwin F. Atkins, Charles Francis Adams, Jr., And The Former Slaves Of Soledad Plantation, Rebecca J. Scott

Articles

Edwin F. Atkins and Charles Francis Adams, Jr., stand out on this stage not as major players but as a particularly intriguing Boston connection. Among the truly major players, planters like Juli?n Zulueta and the Count of Casa More owned hundreds of slaves and shaped Spanish policy. On the Cuban nationalist side, few could equal the impact of Antonio Maceo, the mulato insurgent general who insisted on full emancipation at the end of the 1868-1878 war, or the thousands of rebels who fought under the orders of rebel generals Maceo and Maximo Gomez. As the master of some ninety-five patrocinados …

The European Constitution And Its Implications For China, Xingzhong Yu

Cornell Law Faculty Publications

The European Constitution is significant not only for the European Union, but also for a developing constitutional system like that of China. The EU constitutional practice may have positive implications on China's constitutional theory and practice. In the wake of the European constitutional achievement, Chinese constitutional scholars need to re-examine their long-held conviction in the indispensable role of the state in constitutional formation and imagination. The EU experience may have provided China with valuable insights and ways to deal with its inherited ethnic problems and improve its institutions on regional autonomy for ethnic minorities. China's own constitutional experiment in Hong …

Economic Emergency And The Rule Of Law, Bernadette Meyler

Cornell Law Faculty Publications

Academic work extolling the merits of the "rule of law" both domestically and internationally abounds today, yet the meanings of the phrase itself seem to proliferate. Two of the most prominent contexts in which rule of law rhetoric appears are those of economic development and states of emergency. In the area of private law, dissemination of the rule of law across the globe and, in particular, among emerging market countries is often deemed a prerequisite for enhancing economic development, partly because it ensures that foreign investments will not be summarily expropriated and that contractual rights will not be frustrated by …

Insider Trading Laws And Stock Markets Around The World: An Empirical Contribution To The Theoretical Law And Economics Debate, Laura Nyantung Beny

Articles

The primary goal of this Article is to bring empirical evidence to bear on the heretofore largely theoretical law and economics debate about insider trading. The Article first summarizes various agency, market, and contractual (or "Coasian") theories of insider trading propounded over the course of this longstanding debate. The Article then proposes three testable hypotheses regarding the relationship between insider trading laws and several measures of stock market performance. Exploiting the natural variation of international data, the Article finds that more stringent insider trading laws are generally associated with more dispersed equity ownership, greater stock price accuracy and greater stock …

Insider Trading Rules Can Affect Attractiveness Of Country's Stock Markets, Laura Nyantung Beny

Articles

The academic debate about the desirability of prohibiting insider trading is longstanding and as yet unresolved. Until Henry Manne’s 1966 book, Insider Trading and the Stock Market, the debate centered on whether insider trading is unfair to public investors who are not privy to private corporate information. However, the fairness approach is malleable and indeterminate and thus does not lend itself to clear-cut policy prescriptions. Since Manne’s book, the focus of the debate has been on the effect of insider trading on economic efficiency. Manne argued that, contrary to the prevailing legal and moral opinion of the time, insider trading …

Law And The Market: The Impact Of Enforcement, John C. Coffee Jr.

Faculty Scholarship

Are the U.S. capital markets losing their competitiveness? A fascinating question, but what does it mean and how can it be intelligently assessed? This Article will explore the newly popular thesis that draconian enforcement and overregulation are injuring the United States and will offer a sharply contrasting interpretation: higher enforcement intensity gives the U.S. economy a lower cost of capital and higher securities valuations. This higher intensity attracts some foreign listings, but deters others.

This Article will proceed by first mapping the marked variation in the intensity of enforcement efforts by securities regulators in selected nations and then relating these …

Islamic Law In The Jurisprudence Of The International Court Of Justice: An Analysis, Clark B. Lombardi

Articles

This Article asks whether ICJ opinions to date suggest that judicial consideration of Islamic legal norms has played, can play, or should play a role in the ICJ's resolution of international legal disputes or in establishing the legitimacy of the results that it has reached. It is structured as follows. Part II gives an initial overview of the ICJ to help us understand how and why judges on the ICJ have reached the answers they have. Part III describes how the ICJ's enabling statute permits the Court, at least in theory, to look at Islamic legal norms. As I will …

Consent In Mediation , Jacqueline Nolan-Haley

Faculty Scholarship

This brief comparative analysis of the United States and English approaches to mediation consent raises policy questions about the merits of mandatory mediation. Is England on a better course by requiring consent at the front end of mediation? Will mediation be stronger in the long run when it has a consensual foundation? Arguably, the use of cost sanctions in England's mediation regime makes it close to a mandatory mediation system. For some litigants, participating in mediation will be potentially less costly than arguing that it was not unreasonable to refuse mediation. But despite the mandatory gloss, mediation is still a …

Internalizing Gender: Why International Law Theory Should Adopt Comparative Methods, Darren Rosenblum

Faculty Publications

This Article uses the example of international women 's political rights to examine the value of comparative methodologies in analyzing the process by which nations internalize international norms. As internalized in Brazil and France, the Convention on the Elimination of All Forms of Discrimination Against Women suggests possibilities for (and possible limitations of) interdisciplinary comparative and international law scholarship. Indeed, international law scholarship is divided between theories of internalization and neorealist challenges to those theories. Comparative methodologies add crucial complexity to internalization theory, the success of which depends on acknowledging vast differences in national legal cultures. Further, comparative methodologies expose …

Constitutional Patriotism, Citizenship And Belonging In America And Germany, David Abraham

Articles

No abstract provided.

International Human Rights And Comparative Mental Disability Law: The Universal Factors, Michael L. Perlin

Articles & Chapters

An examination of comparative mental disability law reveals that there are at least five dominant, universal, core factors that must be considered carefully in any evaluation of the key question of whether international human rights standards have been violated. Each of these five factors is a reflection of the shame that the worldwide state of mental disability law brings to all of us who work in this field. Each is tainted by the pervasive corruption of sanism that permeates all of mental disability law. Each reflects a blinding pretextuality that contaminates legal practice in this area.

These are the factors …

A Comparison Of Criminal Jury Decision Rules In Democratic Countries, Ethan J. Leib

Faculty Scholarship

This paper furnishes jury system information about the twenty-eight democracies (excluding the United States) that have been consistently democratic since at least the early 1990s and have a population of five million people or more (with allowance for Mexico and South Africa). I describe general rules that do not always apply to every crime in every context. In the United States, for example, we tend to use a randomly-selected jury of twelve people that sits for a single case; laws generally require unanimity to convict and unanimity to acquit. Failure to reach unanimity results in a “hung” jury, with the …

Restorative Justice And The Pre-Conditions For Grace: Taking Victim's Needs Seriously, Ellen Waldman

Cardozo Journal of Conflict Resolution

This essay surveys the question of victim need from a different vantage point. It takes as its starting point the voices of actual victims as recorded by researchers in the field. It reports on three studies and the linkage they uncover between victim distress and attitudes toward justice and reconciliation. What they reveal belies a simple notion of victim need and suggests that restorativists should move warily as they seek to reshape the criminal justice system into more harmony-producing forms. Victim-offender encounters, truth-telling, and moves toward apology and reconciliation are appealing in the abstract; but data suggests that victims whose …

Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali

Faculty Publications

Three employees of Mphasis, a business process outsourcing ("BPO") firm, which runs call center services for Citibank's U.S. customers in Bangalore, India, were arrested for allegedly siphoning $350,000 from the accounts of Citibank's U.S. customers. These employees used their positions, which provided them access to Citibank customers, to induce four customers into giving out the personal identification numbers to their accounts, allowing the employees to illegally siphon funds out of those accounts. Outsourcing is a growing trend among budgetconscious U.S. companies and institutions. Information being outsourced includes personal data and confidential proprietary information. For example, Unisys Corporation, a company that …

"Technical" Defenses: Ethics, Morals, And The Lawyer As Friend, Thomas L. Shaffer, Robert F. Cochran Jr.

Journal Articles

This essay examines the question of lawyer-client counseling on the issue of raising "technical" defenses, such as statutes of limitations. The authors challenge the prevailing notion of American lawyers that technical defenses raise no moral issue worthy of dialogue between lawyers and clients. Looking at the history of legal ethics and modern treatment in European law, they suggest that questions of limitations do raise moral issues. They go on to explore how those moral issues ought to be discussed and decided between lawyers and clients, using the framework of lawyers as godfathers, hired guns, gurus, and friends that they laid …

Center Of Main Interests, International Insolvency Case Venue, And Equality Of Arms: The Eurofood Decision Of The European Court Of Justice, Samuel Bufford

Faculty Scholarship

This Article examines the Eurofood-E.C.J. decision and evaluates its impact on the decisions of the Irish and the Italian courts to open main insolvency cases for Eurofood. This Article also addresses the broader international insolvency law issues that the E.C.J. decision left open. Part II of this Article provides background information on the format and binding effect of a decision of the E.C.J. Part III explores the background of Parmalat and Eurofood and describes the Eurofood cases in the Irish and Italian courts prior to the E.C.J. decision. Part IV examines the E.C.J. decision, its rationale, and its application to …

Does Liability Enhance Credibility?: Lessons From The Dmca Applied To Online Defamation, Olivera Medenica, Kaiser Wahab

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Why U.S. Federal Criminal Penalties For Dealing In Illicit Cultural Property Are Ineffective, And A Pragmatic Alternative, Derek Fincham

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow

Articles

In fiscal year 2002, approximately 5.8 million Americans borrowed $38 billion (USD) in federal student loans. This was more than triple the $11.7 billion borrowed in 1990. As a rule of thumb, tuition has been increasing at roughly double the rate of inflation in recent years. This troubling trend of accelerating tuition, coupled with the fact that real income has stagnated for men and increased only modestly for women over the past two decades, means that more and more students are going to need to turn to borrowed money to finance their degrees absent a radical restructuring of the postsecondary …

Taxing Consumption And Other Sins, James R. Hines Jr.

Articles

Federal and state governments in the United States use income and payroll taxes as their primary tools to collect revenue. In the rest of the world, governments also use income and payroll taxes, but rely much more heavily than does the United States on taxing consumption. Consumption taxes take many forms, including general sales taxes, value-added taxes, and excise taxes on the consumption of specific items including gasoline, alcohol, tobacco products, firearms, air travel, telephone communication, and others. The U.S. government does not use a value-added tax, making the United States unique among high-income countries and a rarity in the …

Public Rights And Private Commerce: A Nineteenth-Century Atlantic Creole Itinerary, Rebecca J. Scott

Articles

Tracing the history of a family across three generations, from enslavement in eighteenth-century West Africa through emancipation during the Haitian Revolution and subsequent resettlement in New Orleans, then France, then Belgium, can shed light on phenomena that are Atlantic in scope. A business letter written in 1899 by the cigar merchant Edouard Tinchant to General Máximo Gómez in Cuba frames an inquiry that opens out onto a family itinerary that spanned the long nineteenth century. Rosalie Vincent’s achievement of freedom in the shadow of slavery in Saint-Domingue in 1793–1803 can be seen as linked to her grandson Edouard Tinchant’s participation …

Cost-Based And Rules-Based Regulatory Competition: Markets For Corporate Charters In The U.S. And The E.U., Marco Ventoruzzo

Faculty Scholarship

Regulatory competition in corporate law is increasing in Europe and, not differently from what happens in the US, a market for corporate charters is developing in Europe. This article examines the differences between the US corporate law market, and the European one - to the extent that one exists. The basic idea is that, in Europe, there is a stronger competition for the (first) incorporation of rather small, closely-held corporations; while in the US a small closely-held corporation usually incorporates locally, where its shareholders and directors are located, and reincorporates - often in Delaware - when it is growing and, …

Criminal Performances: Film, Autobiography, And Confession, Jessica Silbey

Faculty Scholarship

This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. It suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law's reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions along side an examination of the history of autobiographical writing and film, this article shows how filmed confessions do not reveal the truthfulness …

French Headscarves And The U.S. Constitution: Parents, Children, And Free Exercise Of Religion, Christina A. Baker

Cardozo Journal of Equal Rights & Social Justice

The note examines the 2004 French law banning conspicuous religious symbols in public schools, highlighting its roots in France's unique secularist tradition (laïcité) and its implications for religious freedom. It contrasts this approach with the U.S., where the First Amendment would likely prevent such a ban, emphasizing the importance of protecting religious liberty to safeguard broader societal freedoms. The analysis underscores the differing legal and cultural frameworks between France and the U.S. in balancing secularism and religious expression.

Privacy's Other Path: Recovering The Law Of Confidentiality, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the …

Anonymity On The Internet: How Does It Work, Who Needs It, And What Are Its Policy Implications?, Eric J. Stieglitz

Cardozo Arts & Entertainment Law Journal

No abstract provided.