Comparative and Foreign Law Commons^™

Introduction: China Re-Rising: Innovation And Collaboration For A Successful Twenty-First Century, Lindsay Korotkin

Cardozo Law Review de•novo

All eyes are on China in the twenty-first century, as it emerges as one of the fastest growing economies in the world. At the same time, losses in various industries are attributed to piracy—a substantial amount of which is alleged to occur within China’s borders—and the Chinese government is routinely criticized for its weak enforcement measures against counterfeiting activities and intellectual property infringement on its soil. Cardozo Law Review de•novo’s online symposium, “China Re-Rising: Innovation and Collaboration for a Successful Twenty-First Century” focuses on China’s overall transition from a manufacturing to an innovation economy and how this transition affects …

Collaborative Innovation And Economic Growth: A Comment On China’S Innovation Policies, Chen Wang, Jon Sallet

Cardozo Law Review de•novo

China has also taken steps to encourage the creation of intellectual property by Chinese companies. This Article will first examine the nature of those policies, then consider their impact on the goal of better innovation in China, as well as the impact on multi-national companies that wish to do business in China. The Article will conclude with suggestions about the best ways to build innovation policy to encourage sustainable relationships between China and multi-national companies.

Reimagining The Law Of Self-Employment: A Comparative Perspective, Jayesh Rathod, Michal Skapski

Scholarly Articles in Law Reviews & Journals

U.S. employment law has traditionally disfavored bright-line rules to distinguish between traditional “employees” and independent contractors, instead relying on more flexible criteria, to be applied on a case-by-case basis. This fluidity has enabled employers to structure these relationships – and the corresponding bundle of worker rights and benefits – in ways that serve their own material and normative interests. Indeed, recent employment law literature has noted a dramatic shift towards independent contracting and contingent worker schemes in the U.S., even when the actual workplace dynamics are more akin to an employer-employee relationship. These same trends are now visible on the …

The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf

Faculty Scholarship

U.S. asylum law is based on a domestic statute that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum pro- visions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. This Article highlights this significant omission and urges courts to examine the interpretations of other States Parties to the Protocol in asylum cases. Using as an example the current debate over …

Lessons For International Law From The Arab Spring, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Not all that begins in hope ends in happiness. In Egypt, the exuberance of Tahrir Square has given way to frustration over the resilience of the security state; in Libya, the anti-Qaddafi movement has fractured along tribal and factional lines; in Syria, as of this writing, calls for reform continue to be met with gunfire from government forces. Throughout the Middle East—from Egypt, Libya and Syria to Yemen, Tunisia, Bahrain and elsewhere—the heady excitement of 2010 has given way to a more sober awareness that enduring political change may take years, if not generations. The Arab Spring brought both progress …

Overview And Operation Of U.S. Financial Sanctions, Including The Example Of Iran, Barry E. Carter, Ryan Farha

Georgetown Law Faculty Publications and Other Works

Financial sanctions are increasingly being used in the mix of international economic sanctions being employed by the United Nations, regional entities, and individual countries, including the United States. These financial sanctions have become more focused and effective as the tools and techniques have improved significantly for tracing and identifying the financial transactions of terrorists, weapons proliferators, human rights violators, drug cartels, and others. These sanctions can not only freeze financial assets and prohibit or limit financial transactions, but they also impede trade by making it difficult to pay for the export or import of goods and services.

In spite of …

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 …

Building The Ladder: Three Decades Of Development Of The Chinese Patent System, Peter K. Yu

Faculty Scholarship

In the past three decades, China has been very successful in developing its patent system. In 2012, the country is among the top five countries filing patent applications through the Patent Cooperation Treaty, behind only the United States, Japan and Germany. Among all the applicants, ZTE Corp. and Huawei Technologies had the largest and fourth largest number of PCT applications, respectively. With significant backing from the Chinese government and the anticipated involvement of the world's largest public sector, China will likely catch up with the existing intellectual property powers more quickly than many have anticipated.

Written for a special issue …

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Z. Huq

Faculty Scholarship

In April 2010, the Arizona legislature enacted the Support Our Law Enforcement and Safe Neighborhoods Act. Commonly known as SB 1070, the law created a slate of new criminal offenses and arrest powers covering aliens within Arizona's borders. SB 1070 proved divisive. It inspired copycat legislation in several states, provoked sharp criticism from the legal academy, and – most relevant here – catalyzed a lawsuit by the U.S. Department of Justice seeking a preliminary injunction against the state law on the ground that it was preempted by federal law. Initially, the federal government's litigation prospects seemed dim. One term before …

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 …

Safe To Be Open: Study On The Protection Of Research Data And Recommendations For Access And Usage, Lucie Guibault, Andreas Wiebe

Books

Openness has become a common concept in a growing number of scientific and academic fields. Expressions such as Open Access (OA) or Open Content (OC) are often employed for publications of papers and research results, or are contained as conditions in tenders issued by a number of funding agencies. More recently the concept of Open Data (OD) is of growing interest in some fields, particularly those that produce large amounts of data – which are not usually protected by standard legal tools such as copyright. However, a thorough understanding of the meaning of Openness – especially its legal implications – …

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 …

Book Review: Theory And Practice Of Harmonisation, Mads Andenæs & Camilla B. Andersen (Eds), Toby S. Goldbach

All Faculty Publications

"Theory and Practice of Harmonisation" is an edited symposium publication which tackles the ambitious topic of legal harmonisation. Some common themes can be identified. First, several papers deal with the background to or reasons for harmonisation and consider whether harmonisation goals are being met.Second, several papers examine language-textual issues or problems with defining concepts. A third centralizing theme is the role of legal institutions, in particular courts, in facilitating harmonisation. Finally, a fourth theme is evident in those papers that look at the instruments, mechanisms or legal techniques that are used to implement harmonisation. As a whole, the text seems …

“One Size Can Fit All” – On The Mass Production Of Legal Transplants, Ralf Michaels

Faculty Scholarship

Law reformers like the World Bank sometimes suggest that optimal legal rules and institutions can be recognized and then be recommended for law reform in every country in the world. Comparative lawyers have long been skeptical of such views. They point out that both laws and social problems are context-specific. What works in one context may fail in another. Instead of “one size fits all,” they suggest tailormade solutions.

I challenge this view. Drawing on a comparison with IKEA’s global marketing strategy, I suggest that “one size fits all” can sometimes be not only a successful law reform strategy, but …

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.

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 …

Creditors And The Feme Covert, James Oldham

Georgetown Law Faculty Publications and Other Works

As is well-known, the Court of King’s Bench in Marshall v. Rutton (1800), under Chief Justice Lloyd Kenyon, overruled earlier King’s Bench decisions by Lord Mansfield that had allowed creditors to prevail in suits against married women in an expanding set of factual circumstances. As Kenyon confessed in Marshall, he had never been satisfied with the Mansfield decisions, and had wished that a case “should come to take away all the difficulties.” The Marshall case fulfilled his wish. Kenyon, however, was not the powerful leader of King’s Bench that Mansfield had been, and but for fortuities of judicial turnover, …

Proportionality In Constitutional And Human Rights Interpretation, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer …

Egypt's New Constitution: The Islamist Difference, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The paper discusses the distributional impact of the rules of the new Egyptian constitution (2012). It specifically addresses the way such rules, substantive and (potentially) procedural, can influence Egyptian law's identity and the underlying relations between the state and individuals and among individuals themselves that such identity implies.

Euro Zone Crisis Management And The New Social Europe, Philomila Tsoukala

Georgetown Law Faculty Publications and Other Works

This article analyzes the changes in European governance since the beginning of the euro crisis in relation to the project of constructing Social Europe. The article tracks the incorporation of a structural reform agenda originally designed as bailout conditionality for countries on the verge of default into EU economic governance as a strategy for growth. Beyond the contestable grounds of this reform agenda, its adoption by the EU in the mode of crisis management poses serious questions of legitimacy. The new enhanced economic coordination process includes obligatory guidelines in domains under the legislative competence of Member States, such as labor …

Due Process In Islamic Criminal Law, Sadiq Reza

Faculty Scholarship

Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …

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) …

Defamation And False Rape Claims: Policies, Attitudes, And Suggested Reform In The United States And The United Kingdom, Claire Steinman

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and societal implications of defamation cases arising from false rape claims in the United States and the United Kingdom. It argues that while U.S. defamation law provides stricter standards for liability, the U.K.'s approach to punishment is more effective in deterring false claims. The optimal solution, the note suggests, is to combine the U.S. legal framework for determining liability with the U.K.'s harsher penalties to protect both the falsely accused and genuine victims.

Role-Modeling: How The Americans With Disabilities Act Blocks Bmi-Based Hiring Bans In The United States, Sarah Budow

Cardozo Journal of Equal Rights & Social Justice

The global fashion industry's use of extremely thin models contributes to eating disorders by promoting unattainable beauty standards. In response, some countries have implemented laws restricting underweight models, such as Israel's 2012 law requiring a BMI of 18.5 or higher and mandating warnings for altered images. However, similar measures in the U.S. face legal challenges under the ADA, which prohibits employment discrimination based on disabilities, including eating disorders. The ADA's strict standards for defining disabilities and requiring individualized assessments make BMI-based bans difficult to enforce. While some U.S. states have taken steps like banning airbrushing or protecting underage models, broader …