Comparative and Foreign Law Commons^™

The Good, The Bad, Or The Indifferent: '12 Angry Men' In Russia, Part Of Symposium: The 50th Anniversary Of '12 Angry Men', Stephen C. Thaman

All Faculty Scholarship

Sidney Lumet’s 1957 film, 12 Angry Men, based on the screenplay by Reginald Rose, has become the emblem of the American jury trial as an anti-authoritarian institution based on democratic consensus building. This essay discusses the interplay of literature and criminal justice in pre-Revolution Russia, for this is the cultural soil upon which the film 12 Angry Men was received in Soviet Russia, when it was first screened in 1961. It discusses the reception of 12 Angry Men in Soviet Russia in 1961 and the impact it had on Soviet-era citizens in their understanding of American and Soviet criminal justice, …

The Nullification Of The Russian Jury: Lessons For Jury-Inspired Reform In Eurasia And Beyond, Stephen C. Thaman

All Faculty Scholarship

This article explores the extent to which the Russian jury system has achieved goals crucial to the reformation of inquisitorial Soviet practices.

Consensual Penal Resolution, Stephen C. Thaman

All Faculty Scholarship

Volume I: This is an encyclopedia entry on consensual penal resolution.

China's Courts: Restricted Reform, Benjamin L. Liebman

Faculty Scholarship

Recent developments in China’s courts reflect a paradox largely avoided in literature on the subject: Can China’s courts play an effective role in a non-democratic governmental system? Changes to courts’ formal authority have been limited, courts still struggle to address basic impediments to serving as fair adjudicators of disputes, and courts continue to be subject to Communist Party oversight. Courts have also confronted new challenges, in particular pressure from media reports and popular protests. At the same time, however, the Party-state has permitted, and at times encouraged, both significant ground-up development of the courts and expanded use of the courts …

Review Of Napoleon And The British, Donald J. Herzog

Reviews

Was he fascinating or repulsive? The bold courier of republican liberty under law or the scabrous carrier of lethal Jacobin corruption? Heaven-sent deliverer or providential scourge? Even his name was up for grabs: was it Bonaparte or Buonaparte? One need only dip into contemporary sources to realize that the British were obsessed with Napoleon. Stuart Semmel has done a first-rate job combing through those sources and using them to illuminate political culture. (Semmel does not offer the primary quotations I will use here. I offer them for fun, or to pile on with glee, and not at all to reproach …

Self-Incrimination And The European Court Of Human Rights: Procedural Issues In The Enforcement Of The Right To Silence, Mark Berger

Faculty Works

This article provides an analysis of the procedural aspects of the right to silence falling within Art. 6 of the European Convention on Human Rights. The author examines the jurisprudence of the European Court of Human Rights under the following areas: overview, appearance to answer questions, a demand for documents, false responses, warnings and adverse inferences. The subject is discussed at investigation stage, just prior to and during civil and criminal proceedings. The piece concludes with summaries of the jurisprudence in these varying circumstances.

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 …

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 …

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 …

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 …

"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 …

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 …

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

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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, …

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.

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.

Coming Into Compliance With Trips: A Discussion Of India's New Patent Laws, Jeffrey Colin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Penal Court Procedures: Doctrinal Issues, Stephen C. Thaman

All Faculty Scholarship

Volume III: This is an encyclopedia entry on doctrinal issues in penal court procedures.

Toward A Sui Generis View Of Black Rights In Canada - Overcoming The Difference-Denial Model Of Countering Anti-Black Racism, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.

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 …

Human Rights Outlaws: Nuremberg, Geneva, And The Global War On Terror, George J. Annas

Faculty Scholarship

International human rights law was born from the ashes of World War II. The most important post-World War II products are the United Nations, the Nuremberg Trials, the Universal Declaration of Human Rights, and the Geneva Conventions of 1949. But that was not the end of the story. International human rights law continued to develop and expand right up to September 11,2001, most notably through the adoption of the International Covenant on Civil and Political Rights2 and the Convention Against Torture, 3 and the establishment of the International Criminal Court.4 With the exception of the criminal court, the United States …

Combating Corruption Through International Law In Africa: A Comparative Analysis, Won Kidane, Tom Snider

Faculty Articles

"Little did we suspect," remarked Nelson Mandela, "that our own people, when they get that chance, would be as corrupt as the apartheid regime. That is one of the things that has really hurt us." Africa is the only continent that has grown poorer over the last three decades. The causes of Africa's existing predicaments are complete; however, there is no argument that deep-rooted corruption is one of the most serious contemporary developmental challenges facing the continent. Mr. Adama Dieng, who the Secretary General of the Organization of African Unity (OAU), the precursor of the African Union (AU), entrusted with …

Imports Or Made-In-China: Comparison Of Two Constitutional Cases In China And The United States, Xiao Li

LLM Theses and Essays

When its economic increase attracts the global attention, China is also looking for a break-through in its judicial reform. The Qi v. Chen case (2001) was considered to be the Chinese version of Marbury v. Madison and gave rise to a heated discussion of the judicial review power in China. This article will analyze the doubts on the Qi case and the prospects of judicial review it indicates through comparison with Marbury v. Madison. Although Qi v. Chen opened the door for constitutional litigation, its dramatic facts and strained application of the Constitution threw it into question. Nevertheless, its effect …

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.

Comparative Law, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

The Feminist Battle For Citizenship: Between Combat Duties And Conscientious Objection, Daphne Barak-Erez

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal and feminist struggles surrounding women's inclusion in military service, arguing that such inclusion is central to achieving full citizenship and equality. It critiques the differential treatment of men and women in military service, highlighting how legal frameworks perpetuate gendered roles and undermine civic equality. While legal victories like United States v. Virginia and *Miller* have advanced women’s rights, they have not fully dismantled structural barriers to equality. The article emphasizes the tension between feminist goals of equality and critiques of militarism and patriarchal institutions.

Reforming Federal Personal Injury Litigation By Incorporation Of The Procedural Innovations Of Scotland And Ireland: An Analysis And Proposal, Daniel H. Erskine

Cardozo Journal of International and Comparative Law

Federal procedure has embraced the referral of civil cases outside the court system to alternative dispute resolution. This article argues that by utilizing courts to settle cases through civil procedure, courts realize their central role in ensuring the quality of settlements produced through the judicial administration of justice. The purpose of this article is to provide litigants with an optional procedure to expeditiously resolve federal personal injury cases. The system proposed in this article incorporates Scottish and Irish civil procedural reforms into a coherent method for judicial officers to declare the settlement value of a personal injury action without referring …

Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow

Faculty Publications

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …

Custody, Maintenance, And Succession: The Internalization Of Women's And Children's Rights Under Customary Law In Africa, Allison D. Kent

Michigan Journal of International Law

In this Note, the author examines the process of international human rights norm internalization into areas traditionally governed exclusively by customary law, and the resulting evolution of customary law. Assuming, arguendo, that customary law is to be modified, I argue that a societal norm internalization approach is the most effective means to bring customary law into conformity with international human rights law. After a brief discussion of the fieldwork on which I rely, this Note describes the historical influence of colonialism on the development of customary law in Africa, with a particular focus on the repugnancy clauses of the …

Taking Fairness And Retroactivity From Immigration Law: Casenote On Fernandez-Vargas V. Gonzales, Gregory R. Hawran

University of Miami Inter-American Law Review

No abstract provided.