Comparative and Foreign Law Commons^™

Antagonizing Bogotá, Troy E. Elder

University of Miami Inter-American Law Review

No abstract provided.

The Key To Dreams: The Law And The Other City, Andrée Viana Garcés, Juan Felipe Pinilla Pineda

University of Miami Inter-American Law Review

No abstract provided.

Evaluating Stabilization Clauses In Venezuela's Strategic Association Agreements For Heavy-Crude Extraction In The Orinoco Belt: The Return Of A Forgotten Contractual Risk Reduction Mechanism For The Petroleum Industry, Thomas J. Pate

University of Miami Inter-American Law Review

No abstract provided.

A Tail Of Hope: Canada's North Atlantic Straddling And Highly Migratory Fish Stocks, And The Prince Of Darkness, George T. Williamson

University of Miami Inter-American Law Review

No abstract provided.

Extraterritorial Electioneering And The Globalization Of American Elections, Zephyr Teachout

Faculty Scholarship

This Essay explores a fascinating new truth: because of the Internet, governments, corporations, and citizens of other countries can now meaningfully participate in United States elections. They can phone bank, editorialize, and organize in ways that impact a candidate's image, the narrative structure of a campaign, and the mobilization of base support. Foreign governments can bankroll newspapers that will be read by millions of voters. Foreign companies can enlist employees in massive cross-continental email campaigns. Foreign activists can set up offline meetings and organize door-to-door campaigns in central Ohio. They can, in short, influence who wins and who loses. Depending …

Duty Of Confidentiality In Korea, Suh-Young Shin

UC Law SF International Law Review

The duty of confidentiality is fundamental for the relationship between an attorney and the client. How and when the duty of confidentiality should be enforced upon an attorney has been debated in Korea, after a former in-house counsel of Samsung Group publicly disclosed that the chairman of Samsung allegedly engaged in illegal conduct. Relevant rules from the Korean Bar Association Code of Ethics and Conduct are not specific enough to allow one to assess the act of the former in-house counsel. This note analyzes the issue first under the Korean rules, and then under the relevant U.S. rules. While acknowledging …

The Right To A Fair Trial And The Confrontation Clause: Overruling Crawford To Rebalance The U.S. Criminal Justice Equilibrium, Lindsay Hoopes

UC Law SF International Law Review

In the United States, the right to confrontation is the hallmark fair trial protection. Most foreign and international jurisdictions have adopted the right to confrontation as an integral component of their fair trial protections, modeling the right after the U.S. Constitution's Sixth Amendment. Just as any other right, the right to confrontation requires society to strike a balance between a defendant's right to a fair trial with other competing rights in the criminal justice system: namely, victim's and society's right to adjudication of criminal matters.

Historically, the United States allowed abrogation of the right to confrontation when evidence was sufficiently …

Symbol Of Freedom: Atsa And International Efforts To Increase Security, Valerie Kraml

UC Law SF International Law Review

In 2002, the United States ("U.S.") p assed the Aviation and Transportation Security Act ("ATSA"), under the umbrella of the Patriot Act, which required the collection and dissemination of all international airline passengers' private data, such as name, address, credit card, before foreign airlines could pass over land on U.S. territories. Compliance with the ATSA was highly controversial in the European Union ("E.U."), which maintains strong domestic privacy and personal liberty laws. Efforts to bridge the conflict in domestic privacy laws have led to numerous attempts by the U.S. and E.U. to reach an agreement to increase international security within …

Review Of Trial Of Modernity: Judicial Reform In Early Twentieth Century China, 1901-37, By Xiaoqun Xu, Nicholas C. Howson

Reviews

Observing these significant legal-political debates in the Chinese press and academy in the first decade of the twenty-first century, we might think they concern battles started only in the last decade and a half of Reform-era China. Now Professor Xu Xiaoqun reminds us that these struggles have a much longer pedigree, stretching back to the end of the nineteenth century and China's first fraught encounter with "the West" and one idea of "modernity."

Competences Of The "Union" And Sex Equality: A Comparative Look At The European Union And The United States, Barbara Havelková

Michigan Law Review First Impressions

The delivery of substantive sex equality guarantees in the European Union and the United States is substantially affected by the division of powers ("competences" in European terminology) between the constituent units and the center. This Commentary compares the technical similarities and differences between the structures of competence of the federal systems of the United States and the European Union. This Commentary also briefly sketches their impact on substantive sex equality law.

Can Equality Survive Exceptions?, Daphne Barak-Erez

Michigan Law Review First Impressions

The meaning of the exception vis-à-vis the general rule is primarily discussed in the context of emergency powers (following Cart Schmitt and Giorgio Agamben). But the complicated relationship between the norm and its exceptions is also relevant to other legal contexts. This Commentary is dedicated to the following question: What are the implications of considering equality a fundamental legal principle while recognizing exceptions to its application? More concretely, how does the existence of exceptions influence the understanding and viability of equality as the norm?

Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Faculty Scholarship

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …

Monitoring Of Corporate Groups By Independent Directors, Adam C. Pritchard

Articles

Both the United States and Korea have reformed their corporate governance in recent years to put increasing responsibilities on independent directors. Independent directors have been found to be an important force protecting the interests of shareholders when it comes time to make certain highly salient decisions, such as firing a CEO or selling the company. This article compares the role of independent directors in the US and Korean systems. I argue that the US may have placed regulatory burdens on independent directors that they are unlikely to be able to satisfy, given their part-time status. By contrast, in the chaebol …

Incorporating A 'Best Interests Of The Child' Approach Into Immigration Law And Procedure, Bridgette A. Carr

Articles

United States immigration law and procedure frequently ignore the plight of children directly affected by immigration proceedings. This ignorance means decision-makers often lack the discretion to protect a child from persecution by halting the deportation of a parent, while parents must choose between abandoning their children in a foreign land and risking the torture of their children. United States immigration law systematically fails to consider the best interests of children directly affected by immigration proceedings. This failure has resulted in a split among the federal circuit courts of appeals regarding whether the persecution a child faces may be used to …

London As Delaware?, Adam C. Pritchard

Articles

In the United States, state corporate law determines most questions of internal corporate governance - the role of directors; the allocation of authority between directors, managers, and shareholders; etc. - while federal law governs questions of disclosure to shareholders - annual reports, proxy statements, and periodic filings. Despite substantial incursions by Congress, most recently with the Sarbanes-Oxley Act, this dividing line between state and federal law persists, so state law arguably has the most immediate effect on corporate governance outcomes.

Comparative Law By Numbers? Legal Origins Thesis, Doing Business Reports, And The Silence Of Traditional Comparative Law, Ralf Michaels

Faculty Scholarship

The legal origins thesis -- the thesis that legal origin impacts economic growth and the common law is better for economic growth than the civil law -- has created hundreds of papers and citation numbers unheard of among comparative lawyers. The Doing Business reports -- cross-country comparisons including rankings on the attractiveness of different legal systems for doing business -- have the highest circulation numbers of all World Bank Publications; even critics admit that they have been successful at inciting legal reform in many countries in the world. Yet, traditional comparative lawyers have all but ignored these developments.

The first …

‘The Federalist’ Abroad In The World, Donald L. Horowitz

Faculty Scholarship

This paper traces the influence of The Federalist Papers on five continents. From 1787 to roughly 1850, The Federalist was widely read and highly influential, especially in Europe and Latin America. Federalist justifications for federalism as a solution to the problem of creating a continental republic or to provincial rivalries were widely accepted. So, too, was the presidency, at least in Latin America, and that region adopted judicial review later in the nineteenth century. Presidentialism and judicial review fared less well in Western Europe. Following World War II, judicial review slowly became part of the standard equipment of new and …

Why The Chinese Public Prefer Administrative Petitioning Over Litigation, Taisu Zhang

Faculty Scholarship

In recent years, the Chinese public, when facing disputes with government officials, have preferred a non-legal means of resolution, the Xinfang system, over litigation. Some scholars explain this by claiming that administrative litigation is less effective than Xinfang petitioning. Others argue that the Chinese have historically eschewed litigation and continue to do so habitually. This paper proposes a new explanation: Chinese have traditionally litigated administrative disputes, but only when legal procedure is not too adversarial and allows for the possibility of reconciliation through court-directed settlement. Since this possibility does not formally exist in modern Chinese administrative litigation, people tend to …

Civil Justice Systems In Europe And The United States, Hein Kötz

Faculty Scholarship

Professor Kötz delivered the inaugural Herbert L. Bernstein Memorial Lecture in Comparative Law in 2002 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In order to highlight the similarities and differences in legal regimes between Europe and the United States, Professor Hein Kötz analyzes the German and American civil legal systems and, to a minor extent, the British civil legal system. Specifically, Kötz focuses on one of the distinguishing features of the American legal system, the civil jury, and its impact on the …

Europeanization As A Process: Thoughts On The Europeanization Of Private Law, Christian Joerges

Faculty Scholarship

Professor Christian Joerges delivered the Second Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2003 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Professor Joerges puts forth a three part thesis concerning the “Europeanization of Private Law”, the process by which the European Community influences the legal and political policies of its member states within a framework of transnational cooperation. Joerges first establishes the eroding importance of the idea that legal systems operating at the national level fulfill the goals of …

Constitutions For The 21st Century: Emerging Patterns-The Eu, Iraq, Afghanistan…, Chibli Mallat

Faculty Scholarship

Professor Mallat delivered the Third Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2004 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Strong moments in constitution-making often result from traumas; the breakthroughs by the European Union and constitutional achievements by both Iraq and Afghanistan stand as modern examples. The traumas of Europe, Afghanistan, and Iraq have been typified by violent conflict over the past century, including two World Wars, the Cold War, and the ‘war on terrorism’. Efforts and successes at …

Comparative Law As A Bridge Between The Nation-State And The Global Economy: An Essay For Herbert Bernstein, Richard M. Buxbaum

Faculty Scholarship

Professor Richard M. Buxbaum delivered the Fourth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2005 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In this paper, Richard Buxbaum is primarily concerned with the potential of comparative law as a method to bridge the disparities between the laws of nation-states and the needs of the globalized economy. Buxbaum investigates three separate roles for comparative law in closing this gap: First, he discusses the potential uses of comparative law with regard to …

Desperately Seeking Subsidiarity: Danish Private Law In The Scandinavian, European And Global Context, Joseph M. Lookofsky

Faculty Scholarship

Professor Lookofsky delivered the Sixth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2007 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. As the European Union draws closer together as a single legal community, the states that comprise the EU and their various local subdivisions struggle to come to terms with the unification and universalization of EU laws across borders. The imposition of civil code practices, particularly in the area of private law, on EU member states has caused great consternation …

Political Parties In China’S Judiciary, Jonathan K. Ocko, Zhu Suli

Faculty Scholarship

Professor Suli delivered the Fifth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2006 and this article is based on his remarks, with a foreword by Jonathan Ocko. The article is included in the inaugural volume of CICLOPs thatcollects the first six Bernstein lectures. In responding to Sending Law to the Countryside, Professor Frank Upham levied a number of criticisms against Professor Zhu Suli’s book. Of particular importance was Upham’s criticism concerning a lack of attention to the role of politics and political power in the Chinese legal system. Suli finds this criticism to be extremely important because …

The Bernstein Memorial Lecture: The First Six Years, Ralf Michaels, Stephen Bornick, Jonathan Dalton White

Faculty Scholarship

CICLOPs, the Center for International & Comparative Law Occasional Papers, could not be launched with a better issue than one dedicated to Duke Law's named lecture series in the field, the Annual Herbert L. Bernstein Memorial Lecture in Comparative Law. Herbert Bernstein was Duke's much-beloved professor of comparative law. The lecture series, established in Prof. Bernstein’s honor after his sudden death in 2001, has drawn leading scholars from all around the world to speak at Duke Law School on comparative law. This first issue of CICLOPs contains the text of the first six lectures, some of them previously published in …

Global Legal Pluralism, Ralf Michaels

Faculty Scholarship

Some challenges of legal globalization closely resemble those formulated earlier for legal pluralism: the irreducible plurality of legal orders, the coexistence of domestic state law with other legal orders, the absence of a hierarchically superior position transcending the differences. This review discusses how legal pluralism engages with legal globalization and how legal globalization utilizes legal pluralism. It demonstrates how several international legal disciplines---comparative law, conflict of laws, public international law, and European Union law---have slowly begun to adopt some ideas of legal pluralism. It shows how traditional themes and questions of legal pluralism---the definition of law, the role of the …

International Advocate For Peace Award Acceptance Speech, Amira Dotan

Cardozo Journal of Conflict Resolution

The Ninth International Peace Award Recipient

The Foreign Corrupt Practices Act, Sec Disgorgement Of Profits, And The Evolving International Bribery Regime: Weighing Proportionality, Retribution, And Deterrence, David C. Weiss

Michigan Journal of International Law

This Note uses examples such as Titan Corp. to support the argument that there are reasons to question the United States' increasing reliance on disgorgement to enforce the FCPA. Despite obvious deterrence benefits, the SEC's quest for disgorgement of ill-gotten gains raises significant questions regarding extraterritoriality, proportionality, and evidentiary uncertainty. This Note looks to the history of the FCPA and both international anti-bribery agreements and foreign statutes implementing those agreements in arguing that U.S. and foreign regulators need to create a more certain, predictable enforcement climate as the number of foreign bribery enforcement actions continue to explode.

Untold Stories: Gender-Related Persecution And Asylum In South Africa, Lindsay M. Harris

Journal Articles

South Africa receives more asylum seekers than any other country in the world.1 United Nations High Commissioner for Refugees António Guterres proclaimed, “If you look at the policy and legal statutes of South Africa, refugees enjoy one of the most advanced and progressive systems of protection in the world today.”2 Increasing numbers of women seek South Africa’s protection. In 2006, 20.2% of asylum seekers were women; a significant increase from previous years.3 Given South Africa’s prominence in the region, its handling of female asylees and gender-related persecution claims influences the adjudication of these claims regionally and even worldwide.4

Federal Powers And The Principle Of Subsidiarity., Daniel Halberstam

Book Chapters

Federal systems across the world are generally designed according to the principle of subsidiarity, which in one form or another holds that the central government should play only a supporting role in governance, acting if and only if the constituent units of government are incapable of acting on their own. The word itself is related to the idea of assistance, as in “subsidy,” and is derived from the Latin “subsidium,” which referred to auxiliary troops in the Roman military. See Oxford Latin Dictionary s.v. (1983).