Comparative and Foreign Law Commons^™

When Responsive Legislation Ignores The Forest For The Trees, Matthew G. Curtis

Richmond Journal of Global Law & Business

No abstract provided.

Arab Spring Brings Winds Of Change To The Maghreb And Mena Region: Does That Spell Opportunity For Infrastructure Development And Project Finance?, Silvano Domenico Orsi

Richmond Journal of Global Law & Business

No abstract provided.

The History Of Intellectual Property Taxation: Promoting Innovations And Other Intellectual Property Goals, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

No abstract provided.

Student-Edited Law Reviews And Their Role In U.S. Legal Education, Daniel H. Foote

Articles

>p>For well over a centur y student-edited law reviews have been a major vehicle for publication of scholarship on law in the United States. At those law reviews, students bear responsibility for nearly all aspects of the publication process, including the vitally important task of selecting what works will be published. Criticisms have been raised over various aspects of this system, but they have not stemmed the rise of student-edited law reviews. Today, such law reviews are firmly entrenched as a central feature of the U.S. legal system; and, facilitat­ ed by advances in technology, the number of student-edited …

Internationalization And Integration Of Doctrine, Skills And Ethics In Legal Education: The Contrasting Situations Of The United States And Japan, Daniel H. Foote

Articles

This article addresses two trends in legal education: internationalization and integration of doctrine, skills and legal ethics. In the United States, international and comparative law, skills training, and legal ethics all have deep historical roots in legal education, and the past few decades have seen further major increases in each of those areas. A particularly noteworthy recent development is the rise in efforts to integrate skills training and attention to ethical issues with doctrinal analysis, rather than just teaching each of those elements separately, Notably, Harvard Law School, which continues to influence educational patterns at other law schools within the …

Legal Education For The Future: Global Perspectives, Daniel H. Foote

Articles

This is a report on "FutureEd 2: Making Global Lawyers for the 21st Century," a conference on legal education held at Harvard Law School (HLS) on October 15-16, 2010, In which this author had the opportunity to participate. The conference was the second In a series of three conferences jointly organized by HLS and New York Law School (NYLS). The first conference was held at NYLS in April 2010; the third and final conference was held at NYLS, in April 2011．The goals of the conferences were to stimulate thinking and research about the future of legal education; to promote concrete …

Whistleblower Protection And The Challenge To Public Employment Law, Robert Vaughn

Contributions to Books

Whistleblowers who are public employees are protected by statutes which vary in scope and character, but authorise employees to disclose information outside of the chain of command and under standards that replace internal agency rules or guidelines. During the last decade a number of countries enacted whistleblower statutes that protect public employees who disclose various types of misconduct or incompetence. At the same time, a number of international treaties and conventions addressing governmental corruption have included provisions protecting whistleblowers. The recent activity in providing protection for public sector whistleblowers as well as movements for honesty and transparency in government present …

Cracks In The Firmament Of Burma's Military Government: From Unity Through Coercion To Buying Support, David C. Williams

Articles by Maurer Faculty

Despite holding recent elections, Burma’s military government does not intend to relinquish power; its new constitution guarantees the army the right to do whatever it wants. Democracy will therefore not come to Burma through legal, peaceful, incremental steps. Instead, democracy will come to Burma outside the legal process, because the basis for the regime’s power has changed, becoming markedly weaker. When it first seized power in 1961, the military was united and therefore able to rule through coercion alone. In the past several decades, by contrast, the generals have increasingly sought to purchase support by giving income and resource streams …

The Advance Democracy Act And The Future Of United States Democracy Promotion Efforts, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of …

Financial Literacy Or Financial Castigation?, John A. E. Pottow

Articles

This year, the Canadians- through their government-convened Task Force on Financial Literacy - have proudly produced, "Canadians and their Money: Building a Brighter Financial Future." Armed with 30 recommendations, its most dramatic innovation is to recommend the creation of a Financial Literacy Leader. I have been asked to provide an American perspective on this report specifically and the broader agenda of "financial literacy" more generally as a consumer welfare intervention. Let me start by acknowledging the critiques of the Canadian Task Force. For example, my Canadian colleague, Saul Schwartz, has already drafted a compelling analysis of the political economy behind …

Delay In Process, Denial Of Justice: The Jurisprudence And Empirics Of Speedy Trials In Comparative Perspective, Jayanth K. Krishnan, C. Raj Kumar

Articles by Maurer Faculty

Criminal law scholars regularly maintain that American prisons are overcrowded and that defendants in custody wait long periods of time before having their cases brought to trial. A similar refrain is made of the penal process in India – the world’s largest democracy, an ally of the United States, and a country with a judiciary that has drawn upon American criminal procedure law. In fact, the situation in India is thought to be much worse. Accounts of prisoners languishing behind bars for several years – and sometimes decades – awaiting their day in court are not uncommon. And many Indian …

Ethnicity, Elections, And Reform In Burma, David C. Williams

Articles by Maurer Faculty

No abstract provided.

Refugee Law And Policy: A Comparative And International Approach, Jennifer Moore, Karen Musalo, Richard A. Boswell

Faculty Book Display Case

The fourth edition of Refugee Law and Policy, which includes all legal developments through mid-2010, provides a thoughtful scholarly analysis of refugee law, and related protections such as those available under the Convention against Torture. The book is rooted in an international law perspective, enhanced by a comparative approach. Starting with ancient precursors to asylum, the casebook portrays refugee law as dynamic across time and cultural contexts. This edition of the casebook has incorporated substantial new materials on the cutting edge area of social group claims, and their relevance to claims for protection based on gender-persecution and LGBT status. …

Russia & Legal Harmonization: An Historical Inquiry Into Ip Reform As Global Convergence And Resistance, Boris N. Mamlyuk

Cornell Law Faculty Publications

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with an examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence, and tension between state ideology, positive law, and "law in action." The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has emerged as one of the largest hurdles for Russia's prolonged accession to the World Trade Organization (WTO), these historical precedents may help explain Russia's apparent theoretical and political disconnect from the WTO. If Russian policymakers …

Constituent Authority, Richard Kay

Faculty Articles and Papers

The force of a constitution, like the force of all enacted law, derives, in significant part, from the circumstances of its enactment. Legal and political theory have long recognized the logical necessity of a “constituent power.” That recognition, however, tells us little about what is necessary for the successful enactment of an enduring constitution. Long term acceptance of a constitution requires a continuing regard for the process that brought it into being. There must be, that is, recognition of the “constituent authority” of the constitution-makers. This paper is a consideration of the idea of “constituent authority” drawing on a comparison …

Reconciling European Union Law Demands With The Demands Of International Arbitration, George A. Bermann

Faculty Scholarship

European Union ("EU" or "Union") law and the law of international arbitration have traditionally occupied largely separate worlds, as if arbitral tribunals would rarely be the fora for the resolution of EU law claims and as if EU law, in turn, had little concern with arbitration. For several reasons, this pattern has recently been altered, although the relationship between EU law and international arbitration law is at present anything but settled. From the present perspective, the past looks like an age of innocence, for as these two worlds have begun to intersect, they have not done so entirely harmoniously.

Part …

Universal Exceptionalism In International Law, Anu Bradford, Eric A. Posner

Faculty Scholarship

A trope of international law scholarship is that the United States is an "exceptionalist" nation, one that takes a distinctive (frequently hostile, unilateralist, or hypocritical) stance toward international law. However, all major powers are similarly "exceptionalist," in the sense that they take distinctive approaches to international law that reflect their values and interests. We illustrate these arguments with discussions of China, the European Union, and the United States. Charges of international-law exceptionalism betray an undefended assumption that one particular view of international law (for scholars, usually the European view) is universally valid.

The Flaws Of Foreign Affairs Legalism, Daniel Abebe, Eric A. Posner

Faculty Scholarship

Foreign affairs legalism, the dominant approach in academic scholarship on foreign relations law, holds that courts should abandon their traditional deference to the executive in foreign relations, and that courts and Congress should take a more activist ole in foreign relations than they have in the past. Foreign affairs legalists believe that greater judicial involvement in foreign relations would curb executive abuses and promote adherence to international law. This Article argues that foreign affairs legalism rests on implausible assumptions about the incentives and capacities of courts. In U.S. history, the executive has given more support to international law than the …

The Supreme Court And The Push For Transparency In Lower Court Appointments In Japan, Daniel H. Foote

Articles

The theme of this symposium issue is ―Decision Making on the Japanese Supreme Court.‖ From that title, readers understandably might assume the focus is squarely on decisions in judicial cases. Yet, as Lawrence Repeta observes in his Article for this issue, the Japanese Supreme Court bears responsibility for another major category of decision making: judicial administration.1 One vitally important aspect of judicial administration for which the Supreme Court bears primary responsibility is the selection of lower court judges, together with personnel management of judges (including decisions on promotions and transfers, which are a standard element of Japan’s career judiciary).2 The …

The "Three Strikes" Policy In Korean Copyright Act 2009: Safe Or Out?, Sun-Young Moon, Daeup Kim

Washington Journal of Law, Technology & Arts

Korea has grown to be one of the Internet powers in a short period. Because of insufficient copyright protection, Korea recently revised the Korean Copyright Act to reinforce protection of copyright and promote sound distribution of copyrighted works. The new law allows the Minister of Culture, Sports and Tourism to issue orders and the Korea Copyright Commission to issue recommendations. Orders and recommendations are distinguished by the subject of the issuance and the legal force. Orders and recommendations enable online service providers to delete or stop transmission of illegal reproductions, give warning notices to infringers, or suspend the account of …

Religious Legal Theory Symposium: Introduction, Mark L. Movsesian

Faculty Publications

On November 5, 2010, the St. John's Center for Law and Religion proudly hosted the annual Religious Legal Theory Conference. The event, now in its second year and to be shared among different universities, brought together scholars from around the world to discuss this year's theme, "Religion in Law, Law in Religion." The Center chose this theme in order to include papers on traditional church-state issues—“Religion in Law"—as well as papers addressing the role that law plays in various religious traditions—“Law in Religion." In addition, because contemporary law and religion scholarship has moved beyond strictly domestic-law questions, and takes an …

The Price Of The Ottoman Failure, Mark L. Movsesian

Faculty Publications

(Excerpt)

The question of the implications of secularization for Christian communities in today’s Middle East is a difficult one, both because the extent of contemporary secularization in the region is contested, and because the term itself has so many different meanings. Nonetheless, a preliminary consideration imposes itself. Whatever else it means, secularization means legal equality for religious minorities, including Christians. Formal equality often exists in the Middle East today. Yet legal restrictions – apostasy prosecutions, limitations on clergy and churches, and so on – continue to pose real threats to Christians. Moreover, as Abdullahi An-Na‘im notes, ‘tension with the traditional …

Pirate Trials, The International Criminal Court And Mob Justice: Reflections On Postcolonial Sovereignty In Kenya, Mateo Taussig-Rubbo

Journal Articles

No abstract provided.

Red Card Racism: Using The Court Of Arbitration For Sport (Cas) To Prevent And Punish Racist Conduct Perpetrated By Fans Attending European Soccer Games, Alexander Wynn

Cardozo Journal of Conflict Resolution

This Note proceeds in three sections. Part I describes the extent to which racism infects European soccer, the processes by which Uefa addresses violations of the Uefa Statutes and CAS' contributions to sports mediation and arbitration. Part II contextualizes Uefa's governing authority within statutory and case law from the E.U. and the United Kingdom [hereinafter "U.K."] as legal frameworks through which to explore possible reasons why Uefa rarely imposes substantial sanctions on member associations or teams whose fans perpetrate racist acts. Finally, Part III explores the reasons why CAS is better able to address and punish racism in European soccer …

Revolution And Intervention In The Middle East, Catherine Powell

Faculty Scholarship

No abstract provided.

Participatory Law And Development: Remapping The Locus Of Authority, Maggi Carfield

University of Colorado Law Review

Participatory Law and Development: Remapping the Locus of Authority argues that law and development efforts have been ineffective, at least in part, because development agencies have failed to engage communities in the process of both setting agendas and instituting programs and policies. This work argues that there must be a fundamental shift in the law and international development paradigm. Scholars and practitioners must abandon the question, how can "we" change "them" and instead begin by asking a different question: in what ways, if any, does a community want to change the rules it operates by and how can external actors …

Transnational Class Actions And The Illusory Search For Res Judicata, Tanya J. Monestier

Journal Articles

The transnational class action—a class action in which a portion of the class consists of non-U.S. claimants—is here to stay. Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the “home” courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign …

Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles

Articles

The law of exclusionary vertical restraints-contractual or other business relationships between vertically related firms-is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices, including predatory pricing, tying, exclusive dealing, price discrimination, and bundling, are treated very differently based on formalistic distinctions that bear no relationship to the practices' exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors: foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity to make …

Ability To Pay, John A. E. Pottow

Articles

The landmark Dodd-Frank Act of 2010 ("Dodd-Frank") transforms the regulation of consumer credit in the United States. Many of its changes have been high-profile, attracting considerable media and scholarly attention, most notably the establishment of the Consumer Financial Protection Bureau ("CFPB"). Even specific consumer reforms, such as a so-called "plain vanilla" proposal, drew hot debate and lobbying firepower. But when the dust settled, one profoundly transformative innovation that did not garner the same outrage as plain vanilla or the CFPB did get into the law: imposing upon lenders a duty to assure a borrower's ability to repay. Ensuring a borrower's …

Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth

Vanderbilt Journal of Transnational Law

Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article …