Comparative and Foreign Law Commons^™

Harmonization Of Procedure: Theory And Practice, Thomas O. Main

Scholarly Works

Review of Kramer & Rhee, Civil Litigation in a Globalizing World (2012).

Private Regulation Of Insider Trading In The Shadow Of Lax Public Enforcement: Evidence From Canadian Firms, Laura Nyantung Beny, Anita Anand

Articles

Like firms in the United States, many Canadian firms voluntarily restrict trading by corporate insiders beyond the requirements of insider trading laws (i.e., super-compliance). Thus, we aim to understand the determinants of firms’ private insider trading policies (ITPs), which are quasi-contractual devices. Based on the assumption that firms that face greater costs from insider trading (or greater benefits from restricting insider trading) ought to be more inclined than other firms to adopt more stringent ITPs, we develop several testable hypotheses. We test our hypotheses using data from a sample of firms included in the Toronto Stock Exchange/Standard and Poor’s (TSX/S&P) …

Better Ways To Study Regulatory Elephants, Jonathan B. Wiener, Brendon Swedlow, James K. Hammitt, Michael D. Rogers, Peter H. Sand

Faculty Scholarship

No abstract provided.

Constitutional Provisions Making Sharia “A” Or “The” Chief Source Of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?, Clark B. Lombardi

Articles

The constitutions of many Arab countries provide that Islamic law ("shari'a") is a "source" of national law. Indeed, some make shari'a norms "a chief source," of state law. Other stronger provisions even declare them to be "the chief source" or "the only source" of legislation. There has been surprisingly little historical scholarship about these clauses, either in Arabic or in Western languages. There has also been almost no systematic comparative scholarship looking at the way that these clauses have been interpreted in different countries. In both Western scholarship and in popular Arab discourse one finds considerable confusion about where these …

Opting Out Of The Procedural Morass: A Solution To The Class Arbitration Problem, Emanwel Josef Turnbull

Student Articles and Papers

American class actions are internationally regarded as a procedural form to avoid and widely criticized in the United States. They have been narrowed and restricted by U.S. statutes and case law. Plaintiffs' lawyers in consumer class actions are portrayed as greedy and fraudulent, while businesses are increasingly acting to avoid class actions through mandatory pre-dispute arbitration clauses. Even class arbitration is criticized as leading to a “procedural morass.”

This Article proposes that parties and arbitral fora opt out of the American procedural morass (and the attendant long-running disputes about American class actions) by adopting an English procedural rule for aggregation. …

Fairness And Politics At The Icty: Evidence From The Indictments, 39 N.C. J. Int'l L. & Com. Reg. 45 (2013), Stuart K. Ford

UIC Law Open Access Faculty Scholarship

No abstract provided.

Carter V. Canada (Attorney General): Canadian Courts Revisit The Criminalization Of Assisted Suicide, 59 Wayne L. Rev. 561 (2013), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

A Presumptively Better Approach To Arbitrability, John A. E. Pottow, Jacob Brege, Tara J. Hawley

Articles

One of the most complex problems in the arbitration field is the question of who decides disputes over the scope of an arbitrator's purported authority. Courts in Canada and the United States have taken different approaches to this fundamental question of "arbitrability" that necessarily arises when one party disputes the contractual validity of the underlying "container" contract carrying the arbitration clause. If arbitration is a creature of contract, and contract is a product of consensual agreement, then any dispute that impugns the underlying consent of the parties to the container contract implicates the arbitration agreement itself (i.e., no contract, no …

One Voice Or Many: The Political Question Doctrine And Acoustic Dissonance In Foreign Affairs, Daniel Abebe

Faculty Scholarship

This article examines the merits of the one-voice presumption of the political question doctrine. It has two goals. First, it aims to unpack the underlying assumptions supporting a presumption in favor of one voice in foreign affairs to determine the conditions under which the presumption holds. The traditional account about speaking with one voice focuses on the benefits of centralizing decision making in foreign affairs. The creation of foreign policy and the provision of national security, among other things, are public goods best provided by the national government, rather than the states. Relative to the national government, the states are …

New Modes Of Pluralist Global Governance, Gráinne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This paper describes three modes of pluralist global governance. Mode One refers to the creation and proliferation of comprehensive, integrated international regimes on a variety of issues. Mode Two describes the emergence of diverse forms and sites of cross-national decision making by multiple actors, public and private as well as local, regional and global, forming governance networks and “regime complexes,” including the orchestration of new forms of authority by international actors and organizations. Mode Three, which is the main focus of the paper, describes the gradual institutionalization of practices involving continual updating and revision, open participation, an agreed understanding of …

International Perspectives On Correcting Wrongful Convictions: The Scottish Criminal Cases Review Commission, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Part I of this Article traces the history of the Scottish Criminal Cases Review Commission (SCCRC) and outlines the procedures employed by the SCCRC after an application is received, with particular attention to its extensive investigatory procedures. It also describes and analyzes the standards for referral of an application to the Scottish court. Part II briefly sets forth the statistics concerning applications, referrals, and judicial decisions. Part III includes an analysis of the SCCRC’s work by looking at the cases that have been referred and decided by the court. Those cases are divided into several categories: fresh evidence referrals, referrals …

Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong

Faculty Publications

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to …

Targeting And The Concept Of Intent, Jens David Ohlin

Michigan Journal of International Law

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well-settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems — often civil law jurisdictions — prosecutors, judges and even scholars have …

Chinese National Well-Known Trademarks And Local Famous Trademarks In Light Of The 2013 Trademark Law: Status, Effect, And Adequacy, 13 J. Marshall Rev. Intell. Prop. L. 225 (2013), Paul Kossof

UIC Review of Intellectual Property Law

Chinese national well-known trademarks (中国驰名商标) and local famous trademarks (本地著名商标) are two distinct unique intellectual property rights in the People’s Republic of China (“PRC”). Intellectual property attorneys in the PRC, especially foreign consultants, often encounter challenges in understanding these trademark rights including various legislative, administrative, and judicial documents, differences between local regulations, and the general lack of information and translations. The third revision to the Trademark Law, which takes effect on May 1, 2014, will bring widespread domestic attention to this subject because the new law bans the use of national well-known trademarks on products, packaging, and advertising. The author …

Book Review Of The Impossible State By Wael Hallaq, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

In his book The Impossible State, Wael Hallaq argues that the modern state is a bad fit for Muslims. This is so because the paradigm of “Islamic Governance”, developed through centuries of Islamic rule, and the modern state of the West are incompatibles if not altogether contradictory. The modern state, a European invention and an expression of the unique unfolding of Europe’s history, being premised on the deep penetration by the nation state of its population, a separation of powers between the executive, legislative and the judiciary that is always faltering, a separation between …

International Criminal Law In 2013: The Most Significant Developments (Proceedings Of The Asil Annual Meeting), Milena Sterio

Law Faculty Presentations and Testimony

While many events have shaped the development of international criminal law over the past year, the most significant ones, in my view, included the Special Court for Sierra Leone's appellate confirmation of the Charles Taylor verdict, as well as the United Nations Security Council's failure to refer the Syrian situation to the International Criminal Court (ICC).

Internal Legitimacy And Europe's Piecemeal Constitution: Reflections On Van Gend At 50, Daniel H. Halberstam

Book Chapters

Europe is often said to lack a proper constitution of the radical American kind. That may be so, but there is a different, more promising sense in which Europe might be following the very best of the constitutional tradition.

Worldwide Access To Foreign Law: International And National Developments Toward Digital Authentication, Claire M. Germain

UF Law Faculty Publications

This paper was originally presented at the World Library & Information Congress of the International Federation of Library Associations and Institutions (IFLA), Helsinki, Finland, August 2012, as part of a panel on Promoting Global Access to Law: Developing an Open Access Index for Official Authenticated Legal Information, Part II. Europe. It focuses on worldwide access to the official word of the law, specifically to statutes, codes, regulations, court decisions, and international agreements in different foreign countries. The importance of improving global access to foreign law was highlighted at a 2012 joint European Commission/Hague Conference on Private International Law, with the …

Optimizing English And American Security Interests, Lynn M. Lopucki, Arvin I. Abraham, Bernd P. Delahaye

UF Law Faculty Publications

Since the adoption of Uniform Commercial Code Article 9 in American jurisdictions in the 1960s, scholars have debated the desirability of the extraordinary priority given to secured creditors. Through a point-by-point comparison of English and American security interests, this article provides a new perspective on that long-running debate. The comparison reveals that security functions in strikingly similar manners in the two jurisdictions, while differing sharply in one crucial respect. In contrast to the absolute priority given secured creditors under American law, English law subordinates floating charges to administrative expenses, preferential creditors, and a prescribed share for unsecured creditors. Other, less …

From Opera To Real Democracy: Popular Constitutionalism And Web 2.0, Elizabeth Dale

UF Law Faculty Publications

On March 17, 2011 the conductor Riccardo Muti stood in the orchestra pit at the Teatro dell’Opera di Roma and, in the presence of the Italian Prime Minister, Silvio Berlusconi, and the Italian President, Giorgio Napolitano, denounced the Italian government’s cuts to funding for the arts and culture. He then invited the entire audience to join the opera’s chorus in an encore of Va’ Pensiero, the hymn of the Hebrew slaves in Nabucco, to protest the cuts. Within two days of the sing-a-long, the Italian government reversed the course it set more than ten months before and agreed to a …

The Conceptual And Jurisprudential Aspects Of Property In The Context Of The Fundamental Rights Of Indigenous People: The Case Of The Shuar Of Ecuador, Winston P. Nagan, Craig Hammer

UF Law Faculty Publications

This article draws attention to several problems relating to indigenous ownership of both real and intellectual property, and their related impact upon the well-being and essential dignity of indigenous peoples. Part II of this article introduces the concept of indigenous ownership of real and intellectual property. Part III digs deeper into challenges to indigenous ownership of land, using the Shuar people of Ecuador as a case study. Part IV examines the problem of bioprospecting, as well as some of its implications, and discusses how the problem has affected the Shuar. It additionally summarizes a few steps toward developing an effective …

Popular Discontent, Revolution, And Democratization In Egypt In A Globalizing World, Abdel-Fattah Mady

Indiana Journal of Global Legal Studies

This paper examines how informal, discontent actors in Egypt have evolved in a globalizing world and their role in the January 25th revolution. It focuses on the effects of the deteriorating economic and social conditions in Egypt related to the former regime's policy and the role of mass media, information, and communication technologies in facilitating mobilization, recruitment, and eventually the popular uprising. This paper also discusses the issue of how informal discontent protesters and groups formulate their goals and organize themselves to exert pressure on formal institutions of the state. The main conclusion is that informal actors have not yet …

Globalization, The Rule Of (Administrative) Law, And The Realization Of Democratic Governance In Africa: Realities, Challenges, And Prospects, Migai Akech

Indiana Journal of Global Legal Studies

This article reviews the impact of globalization on democracy in Africa. It sees globalization, which has largely taken the shape of neoliberalism, as leading to the development of a minimalist conception of democracy in African countries. Further, this article contends that administrative law norms, which are increasingly embraced in Constitutions and judicial decisions world over, can be useful instruments for deepening democracy in Africa. That is, the establishment and implementation of elaborate regimes of administrative law (containing principles, procedures, and remedies that circumscribe the exercise of both public and private power) can contribute to the realization of democratic governance in …

The Judicial Reform In China: The Status Quo And Future Directions, Ji Weidong

Indiana Journal of Global Legal Studies

This article shows that Chinese adjudication is in a dilemma: on one hand, the judicial discretion is extensive; on the other hand, public opinion supervision is adopted to control the discretion. In fact, the public opinion and judicial discretion could co-exist and compliment one another. There is no objective and stable framework regulating both. There are attempts aiming to completely negate the judicial discretion, such as computer sentencing. A strange logic of judicial reform exists in China: either eliminating the judicial discretion through such mechanical methods as computer sentencing in the hope to guarantee judgment in conformity with the law; …

The Dilemma Of Public–Private Partnerships As A Vehicle For The Provision Of Regional Transport Infrastructure Development In Africa, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

With regional economic integration (REI) as a major strategy for development, the African continent hosts a plethora of regional economic communities of varying ambition longevity and success. While in the 1970s, political-economic ideas built mainly on the “developmental state” informed the design of most of these agreements, the change in economic thought in the 1980s which ushered in the “neoliberal turn” has since influenced the design of most REI schemes in Africa, including the New Partnership for African Development. However, among other factors, inadequate transport infrastructure linking regions poses a major impediment to regional trade and development in Africa. The …

A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Elizabeth Thornburg, Erik S. Knutsen, Carla Crifo', Camille Cameron

Articles, Book Chapters, & Popular Press

This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree — and in which procedure is recognized as a legitimate academic subject — have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of …

Filial Support Laws In The Modern Era: Domestic And International Comparison Of Enforcement Practices For Laws Requiring Adult Children To Support Indigent Parents, Katherine C. Pearson

Faculty Scholarship

Family responsibility and support laws have a long but mixed history. When first enacted, policy makers used such laws to declare an official policy that family members should support each other, rather than draw upon public resources. This article tracks modern developments with filial support laws that purport to obligate adult children to financially assist their parents, if indigent or needy. The author diagrams filial support laws that have survived in the 21st Century and compares core components in the United States (including Puerto Rico) and post-Soviet Union Ukraine. While the laws are often similar in wording and declared intent, …

Issues And Trends In Collection Development For East Asia Legal Materials, Jootaek Lee, Alex Zhang, Keiko Okuhara, Evelyn Ma

Faculty Scholarship

The authors delineate the general policy and guidelines for developing foreign and transnational law collections in U.S. law libraries, and they analyze factors that shape East Asian collections, such as law libraries’ preservation and digitization efforts and their related cost-efficiency, and the availability and quality of English translations. The authors then discuss the main sources for Korean, Japanese, and Chinese law.

Trends In Global And Canadian Lawyer Education, Laurel S. Terry

Faculty Scholarly Works

Globalization and technology have changed the practice of law in dramatic ways. This is true not only in the U.S. and Canada, but around the world. Global regulatory trends have begun to emerge as lawyer regulators have had to respond to new developments. In 2012, Australian regulators Steve Mark and Tahlia Gordon and the author, who is a U.S. academic, documented some of these global trends in lawyer regulation. See Laurel S. Terry, Steve Mark, & Tahlia Gordon, Trends and Challenges in Lawyer Regulation: The Impact of Globalization and Technology, 80 Fordham L. Rev. 2661 (2012), https://works.bepress.com/laurel_terry/95/. Their article concluded …

Treaty Interpretation And Constitutional Transformation: Informal Change In International Organizations., Julian Arato

Articles

Like all constituted bodies of government, international organizations change over time-sometimes in profound and unexpected ways. Besides developing through the obvious mechanism of formal amendment by the constituent member states, these governance bodies can and do undergo a more autonomous kind of constitutional development-what might be called informal constitutional change or transformation. This type of quiet evolution may occur on different levels-including the reordering of the organization's internal architecture in terms of the relative competences of its various organs, as well as the development of the powers of the organization as a whole vis-a­vis the states parties. Unlike formal amendment, …