Comparative and Foreign Law Commons^™

Burden Of Proof And The Prima Facie Case: The Evolving History And Its Applications In The Wto Jurisprudence, Ho Cheol Kim

Richmond Journal of Global Law & Business

No abstract provided.

Outsourcing Drug Investigations To India: A Comment On U.S., Indian, And International Regulation Of Clinical Trials In Cross-Border Pharmaceutical Research, James Cekola

Northwestern Journal of International Law & Business

The traditional research and development model of large pharmaceutical companies is arguably unsustainable in current times. For example, estimated research and development costs increased as much as twelve percent over the last year while pharmaceutical sales grew only seven percent over the same period. Current estimates put the price to develop a new drug and bring it to market between $800 million and $1.5 billion per drug. These costs are increasing, driving large pharmaceutical companies to find more cost-effective research and development models. One cost-saving initiative is to globalize the system. In particular, companies have increasingly outsourced the required investigational …

Asset-Backed Securitization In China, Yuwa Wei

Richmond Journal of Global Law & Business

No abstract provided.

Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland

Faculty Scholarship

At least since Alexis de Tocqueville wrote in 1831, the idea that America is distinctive from other nations has permeated much political and social commentary. The United States has been variously perceived as unique in its history, its culture, its national values, its social movements, and its social and political institutions. While the term technically refers only to distinctiveness or difference, "exceptionalism" may have positive or negative aspects – what Harold Koh has called "America's Jekyll-and-Hyde exceptionalism." In the legal realm, claims of exceptionalism have been offered to support what Michael Ingnatieff identifies as "legal isolationism" – or refusal by …

The International Legal Environment For Serious Political Reporting Has Fundamentally Changed: Understanding The Revolutionary New Era Of English Defamation Law, Marin Roger Scordato

Scholarly Articles

On October 11, 2006, Britain's highest court, the House of Lords, issued a blockbuster ruling that completely changed the landscape of libel law and press freedoms in the United Kingdom. The Times of London described the case, Jameel v. Wall Street Journal, as, "a judgment that lawyers predict will usher in a new era of journalism." Given England's reputation as an attractive jurisdiction for defamation plaintiffs and a frequent destination for "libel tourism," this case is likely to alter the environment for serious political journalism throughout Europe and North America.

This article carefully describes the case, including its key holdings …

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 …

Molecular Federalism And The Structures Of Private Lawmaking, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Private Finance, Social Responsibility, And Transitional Justice: The Case For South African Reconciliation And Development Bonds, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Introduction (Symposium: Perspectives On Post-Conflict Constitutionalism), Ruti G. Teitel

Articles & Chapters

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 …

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 …

Teaching Comparative Perspectives In Mediation: Some Preliminary Reflections Symposium: Transatlantic Perspectives On Alternative Dispute Resolution, Jacqueline Nolan-Haley

Faculty Scholarship

The study of comparative law and legal process in any subject area offers the usual advantages of learning about other countries' legal cultures and developing a deeper understanding of one's own legal tradition. In the case of mediation, it is important to evaluate critically what is learned through comparative analysis. Mediation is still developing as a profession; it is newly institutionalized in legal cultures; and, it is relatively new to the canon of legal education. National legal traditions have responded differently to the implementation of mediation. Thus, lawyers must have an understanding of the differences and nuances in mediation law …

Boticas Y Bodegas: The Development Of Food And Drug Regulation In Peru, Alicia C. Llosa

University of Miami Inter-American Law Review

No abstract provided.

Contagious Efficiency: The Growing Reliance On U.S.-Style Antitrust Settlements In Eu Law, George S. Georgiev

Articles

This Article analyzes the impact of the introduction of U.S.-style antitrust settlement procedures in EU law, which occurred in 2004 as part of an ambitious antitrust modernisation program. After documenting the lack of a settlement tradition in the EU legal system or the legal systems of EU member states, I argue that the new procedures were transplanted from U.S. law and that this was done without sufficient tailoring. Relying on lessons from the longstanding U.S. experience with antitrust settlements and on emerging evidence about the EU's own approach since 2004, I analyze the effects from the introduction of settlements at …

Guilty Pleas And Barristers' Incentives: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

When considering the defendant's plea, barristers, like lawyers, have two overriding, selfish interests: maximizing remuneration and avoiding sanction. The tension between defendant and defender is most acute when the defendant is indigent and the defender has been chosen to represent him. It is their relationship that is addressed in this article.

The goal is to align the defender's selfish interests with the defendant's need for thoughtful advice over how to plead, so that, behind the guise of apparently disinterested advice, the advocate is not pursuing his interests at the defendant's expense. By contrast to most American practice, the method of …

Property As Constitutional Myth: Utilities And Dangers, Laura S. Underkuffler

Faculty Scholarship

No abstract provided.

The Many Uses Of Federalism, Donald L. Horowitz

Faculty Scholarship

This paper forms part of a symposium on Sanford Levinson's Our Undemocratic Constitution. It points out that although almost no large state that is governed democratically is not a federation, there are only about 24 federations in the world and all but four of these antedate the Third Wave of Democratization, which began in 1974. Most new democracies have not found federalism attractive. Yet, for many such countries, devolution (or scaling-down) federalism, in contrast to the scaling-up federalism originally devised in 1787, has great potential to alleviate conflicts in severely divided societies. Many of these are small or medium-sized states. …

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 …

Contractual Expansion Of The Scope Of Patent Infringement Through Field-Of-Use Licensing, Mark R. Patterson

Faculty Scholarship

Patentees sometimes license their inventions through field-of-use licenses, which permit licensees to use the inventions, but only in specified ways. Field-of-use licensing is often procompetitive, because the ability to provide different licensing terms for different users can encourage broader licensing of inventions. But in recent United States cases, the Federal Circuit Court of Appeals and lower courts have upheld field-of-use licenses prohibiting activities that licensees would otherwise have been permitted by patent law, such as the repair and resale of patented products. The recent cases rely on the Federal Circuit's decision in Mallinckrodt, Inc. v. Medipart, Inc., where the court …

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 …

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

Faculty Publications

No abstract provided.

Separating State From Church: Researching The Legal System Of The Vatican City State, Stephen E. Young, Alison Shea

Scholarly Articles

Mr. Young and Ms. Shea discuss the unique situation of the Vatican City State in legal research. They provide an overview of the founding documents and the constitutional structure of the world's smallest sovereign nation, a discussion of the complex nature of the Vatican's international status, and a bibliographic essay covering the materials most likely to be available in law libraries in the United States.

Post A Message And Go To Jail: Criminalizing Internet Libel In Japan And The United States, Salil K. Mehra

University of Colorado Law Review

In the United States, criminal libel is all but dead. American law professors only write about it to denounce the continued existence of rarely enforced criminal libel statutes. In Japan, however, criminal libel laws have become vital tools in policing injurious speech on the Internet. Defamatory posts lead to police intervention and even arrest. Because the United States is considering regulation of online speech, potentially including criminal penalties, we can learn from the experience of Japan. From a positive perspective, this Article explains why Japan applies such laws to the Internet. From a normative perspective, the Article addresses why broadly …

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

Publications

No abstract provided.