Comparative and Foreign Law Commons^™

The Breakdown Of The Rule Of Law In Sri Lanka: An Overview, James Yap, Craig Scott

All Papers

This brief report, prepared for the Sri Lanka Campaign for Peace and Justice and dated September 22, 2010, analyzes the state and the underlying causes of the current breakdown of the rule of law in Sri Lanka. The information herein is drawn primarily, while not exclusively, from three sources: Basil Fernando, Sri Lanka: Impunity, Criminal Justice & Human Rights (Asian Human Rights Commission: Hong Kong, 2010); Justice in retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka (International Bar Association Human Rights Institute [IBAHRI]: London May 2009); Kishali Pinto-Jayawardena, The Rule …

Bringing Our Kids Home: International Parental Child Abduction & Japan's Refusal To Return Our Children, Robin S. Lee

Cardozo Journal of Equal Rights & Social Justice

The note examines Japan's refusal to ratify the Hague Convention on the Civil Aspects of International Child Abduction, highlighting how this decision creates a legal haven for parental child abductions. It explores the cultural, legal, and systemic factors in Japan that facilitate these abductions and the challenges faced by foreign parents in retrieving their children. The note also discusses potential solutions and international efforts to pressure Japan into adhering to the Convention.

Civil Procedure Reform In Switzerland And The Role Of Legal Transplants, Samuel P. Baumgartner

Akron Law Faculty Publications

On January 1, 2011, Swiss courts will begin operating under a unified federal code of civil procedure for the first time in the country’s history. This code has been exceedingly long in the making. In this chapter, I use the new code and its history to engage the editors’ claim that the old categories of common law and civil law procedure are crumbling, thus making differences among countries within the common law or civil law world more important than differences across the divide.

First, the new Swiss code of civil procedure includes a number of features that may look like …

Rise Of Political Populism And The Trouble With The Legal Profession In China, Dongsheng Zang

Articles

This essay looks into recent efforts by the ruling party in China to tighten control of the judiciary, the lawyers and prosecutors under the slogan of "harmonious society" in the last couple of years. This reversed the direction of judicial reform under the leadership of Xiao Yang, during his tenure as President of the Supreme People's Court before 2008. The trouble with the legal profession in China, the essay asserts, is not only that it loses its professional autonomy thus its ability to act as a sociopolitical force that is independent from the ruling political party; but also, by virtue …

Policymaking By The Japanese Judiciary In The Criminal Justice Field, Daniel H. Foote

Articles

When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and …

Slums, Slumdogs, And Resistance, Tayyab Mahmud

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Social-Obligation Norm Of Property: Duguit, Hayem, And Others, M C. Mirow

Faculty Publications

This article discusses and analyzes the sources and methods used by Leon Duguit in constructing the social-obligation or social-function norm of property as set out in an influential series of lectures in Buenos Aires published in 1912. The work of Henri Hayem has been underappreciated in the development of Duguit's ideas. Hayem should be restored as a central influence on Duguit's thought and as one of the main and earliest proponents of the idea of the social-function norm. The article also examines the influence of Charmont, Comte, Durkheim, Gide, Hauriou, Landry, and Saleilles in Duguit's thought on property and its …

Evaluating South Africa’S Post-Apartheid Democratic Prospects Through The Lens Of Economic Development Theory, Jonathan L. Marshfield

Richmond Journal of Global Law & Business

Political scientists have identified compelling correlations between economic development and democratic stability. In general, the wealthier and more developed a country, the greater its chances of maintaining a long-term, stable democracy. This Article evaluates whether South Africa’s post-apartheid economic conditions are trending towards conditions that generally correlate to stable democracies. It compares South Africa’s post-apartheid economic conditions to the empirical trends that development theorists have identified as correlative to democratic stability. This analysis is important because if South Africa’s post-apartheid economic conditions do not exhibit positive trends, this may suggest that despite the just end of apartheid, conditions are becoming …

Foreword, Daniel T. Murphy

Richmond Journal of Global Law & Business

In this Forward, Murphy introduces the annual symposium sponsored by the Richmond Journal of Global Law and Business, entitled “A Collision of Authority: The U.S. Constitution and Universal Jurisdiction.” He briefly discusses presentations given by three prominent constitutional law and international law scholars: Dean Erwin Chemerinsky, Professor Mary Ellen O’Connell, and Professor Jeremy Rabkin.

The New Deference-Based Approach To Adjudicating Political Questions In Corporate Ats Cases: Potential Pitfalls And Workable Fixes, Seth Korman

Richmond Journal of Global Law & Business

Much has been made of executive-branch attempts to exert control over cases brought against corporations under the Alien Tort Stat- ute. Under the Bush Administration, the executive branch repeatedly sought to influence district court opinions through targeted letters to the court or statements of interest. These letters, frequently written by the State Department legal advisor, sought to convince courts that adjudication of claims against corporate defendants would have an ad- verse effect on U.S. foreign policy, thus triggering the political question doctrine and forcing the courts to rule the claims nonjusticiable. Though some courts have, in fact, deferred entirely to …

“To Remand, Or Not To Remand”: Ventura’S Ordinary Remand Rule And The Evolving Jurisprudence Of Futility, Patrick J. Glen

Richmond Journal of Global Law & Business

Presumably few federal appellate judges are confronted with the Danish prince’s existential angst: “To be, or not to be: that is the question. . . .” Nonetheless, a similar ambivalence may be present in the circumstance of judicial review of administrative agency decisions. No less eminent an authority than former Second Circuit Judge Henry Friendly expressed just such angst in the introduction to his 1969 Duke Law Journal article, in which he attempted to discern bright-line rules in the Supreme Court’s 1943 SEC v. Chenery decision: “Although when I began my labors, I had the hope of discovering a bright …

The Executive And The Courts, Richard Clayton

Penn State International Law Review (1982 - 2011)

No abstract provided.

Reforming Fairness: The Need For Legal Pragmatism In The Wto Dispute Settlement Process, Webb Mcarthur

Richmond Journal of Global Law & Business

The World Trade Organization (“WTO”) dispute settlement system is intended to be the central pillar of the international trade system by which trade disputes involving WTO member states are adjudicated, whether regarding trade in goods, services, or in intellectual property rights. However, an innocuous statement such as this, when closely considered, indicates potential problems for the system. The WTO is an international treaty-based organization, established in 1994 by 123 countries in Marrakesh, Morocco. In addition to settling disputes in international trade, the WTO is also a negotiating forum and a set of rules. The organization is more than a “table” …

Enforcement Of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect To The Eu Data Protection Directive?, Kristen A. Knapp

Richmond Journal of Global Law & Business

Enforcing discovery against companies located in foreign nations is not a new phenomenon. The U.S. Supreme Court took up the conflict between U.S. discovery rules and foreign non-disclosure law in a 1958 case. Despite more than fifty years to reach a settled jurisprudence regarding how to enforce U.S. law against foreign domiciled companies, there has yet to be a clear articulation of a standard applicable in all cases. Currently, there are two main sets of rules under which U.S. courts may enforce discovery laws against foreign companies, and if necessary impose sanctions for non-compliance: the Hague Convention and the U.S. …

World Trade Organization Agreements And Principles As A Vehicle For The Attainment Of Energy Security, Dennis J. Hough Jr.

Richmond Journal of Global Law & Business

Do you remember how you felt on Wednesday, January 7, 2009? Perhaps you do not. I know how some Europeans felt — cold. That was the day that Russia stopped all natural gas exports to Ukraine. By itself, this was a serious course of action. However, because Ukraine is the main transmission corridor for natural gas pipelines shipping gas to Europe, the situation commanded worldwide attention.

Post-Sox Trends In Delistingsand Deregistration, Samuel Wolff, Clarence D. Long Iv

Richmond Journal of Global Law & Business

No abstract provided.

Simplifying The Prophecy Of Justiciability In Cases Concerning Foreign Affairs: A Political Act Of State Question, Deborah Azar

Richmond Journal of Global Law & Business

Justiciability doctrines in the foreign affairs arena have been described as involving large elements of prophecy. First, this article will examine the justifications and application of the political question doctrine in cases involving foreign affairs. Second, this article will discuss the justifications and application of the act of state and political question doctrines. Third, this article will analyze whether the act of state doctrine can be encompassed within the political question doctrine. Fourth, this article will propose a framework that can be applied in cases involving political questions in foreign affairs.

Symposium Transcript, Erwin Chemerinsky, Mary Ellen O'Connell, Jeremy Rabkin

Richmond Journal of Global Law & Business

No abstract provided.

Ijtihad Institutions: The Key To Islamic Democracy Bridging And Balancing Political And Intellectual Islam, Adham A. Hashish

Richmond Journal of Global Law & Business

No abstract provided.

Cleaning Up The Mess: The Economic, Environmental, And Cultural Impact Of U.S. Military Base Closures On Surrounding Communities, Elizabeth M. Myers

Richmond Journal of Global Law & Business

Today, many military bases have become financial burdens on the federal government, as the military’s needs and systems have changed drastically since the end of the Cold War. The federal government has discovered it can save a significant amount of money by shutting down unnecessary installations and shifting the work to ongoing bases. The federal government can also make money by selling the land of former military bases to surrounding communities or private companies.

Medellin V. Texas: The Roberts Court And New Frontiers For Federalism, Robert Shawn Hogue

University of Miami Inter-American Law Review

No abstract provided.

Villegas Duran V. Arribada Beaumont: The Second Circuit Court's Interpretation Of Custody Rights Undermines The Purpose Of The Hague Convention On The Civil Aspects Of International Child Abduction, Emily Lynch

University of Miami Inter-American Law Review

No abstract provided.

Methodological Challenges In Comparative Constitutional Law, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

My talk today, Methodological Challenges in Comparative Constitutional Law, has two parts. The first part focuses on the relationship between the purposes of comparison and the methodological challenges of comparison. The second part asks whether there are particular methodological challenges in comparative constitutional law as compared with other comparative legal studies.

Forgive Me, Founding Fathers For I Have Sinned, Carolyn A. Pytynia

Vanderbilt Journal of Transnational Law

The Supremacy Clause of the U.S. Constitution grants the federal government the authority to make the law of the land and, in turn, preempt state law that is incompatible with the federal government's legislative and treaty making efforts. In addition, other provisions of the Constitution authorize the federal government to participate in matters of foreign affairs, and the Supreme Court has found this authority to be exclusive to the federal government in a number of cases. However, the Constitution is silent on the issue of when federal preemption of state law is appropriate when states seek to legislate in matters …

Promoting Commercial Law Reform In Eastern Europe, Samuel Bufford

Faculty Scholarship

This article is my account of what I did in a decade of advising governments and teaching judicial seminars on commercial law matters in Central and Eastern Europe, beginning in 1991. This article contains my individual reflections on more than a dozen visits to developing countries in Central and Eastern Europe to advise governments and to educate their judges, and several visits of judges from some of those countries to the United States. In many ways, my experiences are typical of United States judges who have done the same kind of work in developing countries. In some ways, my experiences …

Freeze-Outs: Transcontinental Analysis And Reform Proposals, Marco Ventoruzzo

Faculty Scholarship

One of the most crucial, but systematically neglected, comparative differences between corporate law systems in Europe and in the United States concerns the regulations governing freeze-out transactions in listed corporations. Freeze-outs can be defined as transactions in which the controlling shareholder exercises a legal right to buy out the shares of the minority, and consequently delists the corporation and brings it private. Beyond this essential definition, the systems diverge profoundly.

This gap exists despite the fact that minority freeze-outs are one of the most debated issues in corporate law, in the public media, in a vast body of scholarly work …

The Merits Of ‘Merits’ Review: A Comparative Look At The Australian Administrative Appeals Tribunal, Jeffrey Lubbers, Michael Asimow

Scholarly Articles in Law Reviews & Journals

This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal (AAT), a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation (the Tribunals, Courts and Enforcement Act) merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. …

Special 301 And Access To Medicine In The Obama Administration, Sean Flynn

Scholarly Articles in Law Reviews & Journals

I. Introduction

This article examines the history and current use of the Special 301 program to restrict access to generic medicines in developing countries, specifically the 2009 and 2010 reports released under the Obama Administration. The news for access to medicines advocates is not good overall. Both reports continue the previous Administration’s policies of using Special 301 to promote Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) policies (“TRIPS-plus”) endangering access to medicines for millions of people worldwide. These policies violate not only the Obama Administration’s pledges to promote access to affordable medications in developing countries, but also U.S. commitments under …

Teaching International Law: Lessons From Clinical Education: Introductory Remarks, Richard J. Wilson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Family Law Exceptionalism In Comparative Law, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

Today, family law is, to a surprising degree, at the center of comparative law inquiries committed to legal unification. Comparative family law projects range from analyzing convergence and harmonization proposals in the West, to law and development schemes in the rest of the world. The most salient reforms of abortion, same-sex marriage, transsexual, and adoption rights are increasingly promoted at the transnational level through international human rights and antidiscrimination principles. Regional and international human rights tribunals in Europe and Latin America are called upon to interpret the right to family life, non-discrimination, and freedom of movement principles to redefine the …