Comparative and Foreign Law Commons^™

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 …

Significance Of The Fujimori Trial, Juan E. Mendez

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Comparative Law: Problems And Prospects, David Snyder

Scholarly Articles in Law Reviews & Journals

The following is an edited transcript of the closing plenary session of the XVIIIth International Congress of Comparative Law. The session took place on Saturday, July 31, 2010, in Washington, D.C., at the conclusion of the week-long congress, which is held quadrennially by the International Academy of Comparative Law (Académie Internationale de Droit Comparé). The remarks were given in a mix of French and English, but for ease of reading the transcript below is almost entirely in English.

Guilty By Association? Regulating Credit Default Swaps, Houman B. Shadab

Articles & Chapters

A wide range of U.S. policymakers initiated a series of actions in 2008 and 2009 to bring greater regulation and oversight to credit default swaps (CDSs) and other over-the-counter derivatives. The policymakers’ stated motivations echoed widely expressed criticisms of the regulation, characteristics, and practices of the CDS market, and focused on the risks of the instruments and the lack of public transparency over their utilization and execution. Certainly, the misuse of certain CDSs enabled mortgage-related security risk to become overconcentrated in some financial institutions.

Yet as the analysis in this Article suggests, failing to distinguish between CDS derivatives and the …

Panama And The Specter Of Climate Change, Ruth Gordon

University of Miami Inter-American Law Review

No abstract provided.

Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine

Scholarly Works

In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …

Hate Speech And The Language Of Racism In Latin America: A Lens For Reconsidering Global Hate Speech Restrictions And Legislation Models, Tanya K. Hernandez

Faculty Scholarship

In Latin America, like many countries in Europe, hate speech is prohibited. Yet Latin America is rarely included in the transnational discussion regarding the regulation of hate speech. Instead, the discourse focuses on a comparison of the advisability of Europe's hate speech regulations and free speech acceptance of hate speech in the United States. As a result, the ability to fundamentally examine the connections between hate speech and inequality, in addition to the most effective legal mechanisms for addressing it, is undermined. It is especially critical to broaden the hate speech debate now that we are seeing an apparent rise …

Feminism As Liberalism: A Tribute To The Work Of Martha Nussbaum Symposium: Honoring The Contributions Of Professor Martha Nussbaum To The Scholarship And Practice Of Gender And Sexuality Law: Feminism And Liberalism, Tracy E. Higgins

Faculty Scholarship

In this essay, I revisit and expand an argument I have made with respect to the limited usefulness of liberalism in defining an agenda for guaranteeing women's rights and improving women's conditions. After laying out this case, I discuss Martha Nussbaum's capabilities approach to fundamental rights and human development and acknowledge that her approach addresses to a significant degree many of the objections I and other feminist scholars have raised. I then turn to fieldwork that I have done in South Africa on the issue of custom and women's choices with regard to marriage and divorce. Applying Professor Nussbaum's capabilities …

Promoting Public Health Through Clinical Legal Education: Initiatives In South Africa, Thailand, And Ukraine, Tamar Ezer

Articles

No abstract provided.

Three Transnational Discourses Of Labor Law In Domestic Reforms, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Current labor law debates, in the United States and elsewhere, reflect entrenched discursive positions that make potential reform seem impossible. This Article identifies and examines the three most influential positions, which it names the “social,” “the neoliberal,” and the “rights-based” approach. It shows that these discursive positions are truly transnational in character. In contrast with conventional wisdom, which accepts the incompatibility of these positions, this Article creates a conceptual framework that productively combines elements from each to enrich the debates over labor law reform and to foster institutional imagination. Applying this framework, the Article examines the collective bargaining systems of …

Explanation Interpretation In Functionalist Comparative Law — A Response To Julie De Coninck, Ralf Michaels

Faculty Scholarship

Response to Julie de Coninck, The Functional Method of Comparative Law: Quo Vadis?, 74 Rabels Zeitschrift für ausländisches und internationales Privatrecht 318–350 (2010) in which De Coninck criticizes existing functionalist comparative law for what she perceives as lack of interest in empirical foundations.

The Rule Of Law Unplugged, Daniel B. Rodriguez, Mathew D. Mccubbins, Barry R. Weingast

Faculty Scholarship

The "Rule of Law" is a venerable concept, but, on closer inspection, it is a complex admixture of positive assumptions, inchoate political and legal theory, and occasionally wishful thinking. Although enormous investments have been made in rule of law reformism throughout the world, advocates of transplanting American-style legal and political institutions to developed and developing countries are often unclear about what they are transplanting and why they are doing so. The concept of rule of law has become unplugged from theories of law. Scholars clearly have more work to do in understanding the rule of law and designing institutions to …

Enforcing International Corrupt Practices Law, Paul D. Carrington

Faculty Scholarship

This Essay strives to advance the current international movement to
deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in “developing” nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.

Value Of Intersectional Comparative Analysis To The Post-Racial Future Of Critical Race Theory: A Brazil-U.S. Comparative Case Study, The Commentary: Critical Race Theory: A Commemoration: Response, Tanya K. Hernandez

Faculty Scholarship

This Commentary Article aims to illustrate the value of comparative law to the jurisprudence of Critical Race Theory (CRT), particularly with reference to the CRT project of deconstructing the mystique of "postracialism. " The central thesis of the Article is that the dangerous seductions of a U.S. ideology of "post-racialism" are more clearly identified when subject to the comparative law lens. In particular, a comparison to the Brazilian racial democracy version of "post-racialism"is an instructive platform from which to assess the advisability of promoting post-racial analyses of U.S. racial inequality. In Part I the Article introduces the value of comparative …

Betting On Dog Racing. The Next Legalised Gambling Opportunity In South Africa? A Cautionary Note From The Regulation Of Greyhound Racing In Great Britain, Marita Carnelley

UNLV Gaming Law Journal

This article commences with a brief overview of the history of dog racing in South Africa. It provides a synopsis of South Africa’s current legal position on dog racing and the betting thereon. The main question this article addresses is whether there is any policy reason why dog racing and wagering should not be legalised and regulated. Furthermore, some comments are included discussing how such regulation should fit into the broader existing gambling regulatory framework should the legislature make the decision to legalise dog racing and wagering.

The article concludes with a discussion of the greyhound racing industry in Britain …

Rewarding Trespass & Other Enigmas: The Strange World Of Self-Exclusion & Casino Liability, Emir Aly Crowne-Mohammed, Meredith A. Harper

UNLV Gaming Law Journal

In this paper, the authors address many of the tortious and contractual issues associated with the liability of casinos to problem gamblers. The issues in tort are analyzed through the traditional elements of the action – duty of care, standard of care, proximity, and recognizable loss. Under contract law, the authors examine the problems associated with consideration and mental capacity when problem gamblers sign a contractual undertaking to be excluded from casinos and other gaming venues.

Many of the references cited in this work relate to the Province of Ontario because an earlier article (and report) on the issue of …

Luck Of The Irish: Will The Casinos Tranform From Gaelic Grey To Gaelic Green $$, William N. Thompson

UNLV Gaming Law Journal

As the first decade of the twenty-first century evolved, Ireland was one of only two countries in the European Union that did not have legal, regulated casinos. The Irish Gaming and Lotteries Act of 1956 does not prohibit games with equal chances. Moreover, games can be conducted lawfully, according to the Act, if promoters assess minor seat charges to players, and “the promoter derives no personal profit from the promotion of the game.” Additionally, Part III of the 1956 law indicates that amusement centers can have slot machines that award small prizes. The Act also includes provisions for private lotteries, …

Deregulation Pas De Deux: Dual Regulatory Classes Of Financial Institutions And The Path To Financial Crisis In Sweden And The United States, Erik F. Gerding

Publications

This article presents the following model of two regulatory classes of financial institutions interacting in financial and political markets to spur deregulation and riskier lending and investment, which in turn contributes to the severity of a financial crisis: 1) Regulation creates two categories of financial institutions. The first class faces greater restrictions in lending or investment activities but enjoys regulatory subsidies, such as an explicit or implicit government guarantee, while the second class is more loosely regulated and can make riskier loans or investments and earn additional profits. 2) These additional profits leads to calls for deregulation to enable the …