Comparative and Foreign Law Commons^™

A Comparison Of Two Smart Cities: Singapore & Atlanta, Karen Johnston

Faculty Publications By Year

This paper compares Singapore's top-ranked smart city strategy to Atlanta, Georgia, a city that does not make a top smart city ranking but boasts internationally recognized smart city projects.

Rainwater Harvesting: Legal Frameworks In The United States, Singapore And Other Countries, Julian Conrad Juergensmeyer, Audrone Vysniauskaite Durham

Faculty Publications By Year

With increasing climate change effects worldwide, rainwater harvesting is likely to become more and more important to ensure reliable alternative water supply and to conserve the environment. This article examines two goals to be accomplished through rainwater harvesting: (1) augmenting water supply for proposed development's use through regulations that have been formulated to make the proposed development responsible for at least a portion of the water supply needed to support the new development; and (2) managing stormwater runoff. The results show that many, perhaps most, rainwater harvesting programs, as exemplified by efforts in Singapore and elsewhere around the world, succeed …

The Human Rights Movement And The Prevention Of Evil: The Need To Look Inward As Well As Out, Jeffrey A. Brauch

Catholic University Law Review

The modern human rights movement began as a response to great evil perpetrated by individuals and nations against others during and preceding World War II. The movement has been dedicated to protecting the rights of individuals by confronting evil and holding nations accountable should efforts to prevent it fail.

This article contends that while the human rights movement is good at confronting evil “out there,” it has failed in important ways to recognize flaws within itself. In particular, it displays a hubris that shows itself in two ways. First, the movement has embraced a utopian expansion of rights to be …

The Regulation Of Space Tourism, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Space tourism has to be regulated as a subset of private spaceflight activities, whereby humans are sent to outer space in a fundamentally private context. In addition to space law, air law would be relevant for addressing private spaceflight, but neither regime has at the international level regulated relevant activities to any appreciable extent. They provide little more than a set of guiding overarching principles. Much of the onus of future regulation will fall on the shoulders of individual states, most notably the United States. In the more distant future, this may result in a special international regime, using elements …

Legal Challenges In The Context Of The European Space Policy, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Introduction

If institutionalism is about the extent to which institutions influence the political and legal realms, and (political) neoinstitutionalism in that respect stresses the extent to which decisions by political actors are framed by institutions, European space policy would present a very interesting example thereof.

It should be noted, however, that this contribution addresses the issue of European space policy from a predominantly legal vantage point, not that of political science, meaning that even such concepts as “policy” and “institution” are first and foremost being discussed in their legal connotation and context, read from the perspective of a lawyer. Such …

To Recognize Or Not? Good Faith Under Nigerian Law Of Contract, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

Unlike jurisdictions such as Canada and the United Kingdom, Nigerian courts have not engaged with the doctrine of good faith. Similarly, there is a dearth of academic scholarship that examines this aspect of the Nigerian law of contract. In this paper, I examine how the Nigerian courts have operationalized the common law of good faith in the performance of contracts. Rather than suggest that good faith as “an organizing principle” has an internally consistent meaning by which we can transplant the doctrine from one jurisdiction to another, or even apply the so-called duty of honest performance as enunciated by the …

Reverse Contributors? African State Parties, Icsid, And The Development Of International Investment Law, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

International investment disputes involving African states before the International Centre for Settlement of Investment Disputes (ICSID) have generated significant critical inquiry. Yet, accounts of their contribution to the development of international investment law as a result of these dispute are limited. This article addresses this gap. It examines the contribution of some of the high-profile ICSID disputes involving African states to the development of international investment law. Notwithstanding the charges against African States in ICSID, I contend that the involvement of African States in ICSID Disputes has contributed to the development of international investment law. In particular, the jurisprudence that …

The Reality Of Indian Regulation, Devesh Kapur, Madhav Khosla

Faculty Scholarship

In this introductory chapter, we have chosen to resist exploring some of the general themes associated with regulation, from its capacity to respond to market failures and market limitations, to the ways to make it accountable. Instead, we have chosen to turn to certain features of Indian regulation that are distinctive. Our basic premise is that, for all the legal ambiguities and institutional weaknesses, studying the Indian regulatory state is unavoidable, and may even be the inevitable starting point for numerous other issues, from economic growth to inequality to democratic accountability. This premise is only strengthened by the fact that, …

Embedding Content Or Interring Copyright: Does The Internet Need The "Server Rule"?, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

The “server rule” holds that online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work. As a result, the rule shields a vast array of online activities from claims of direct copyright infringement, effectively exempting those activities from the reach of the Copyright Act. While the server rule has enjoyed relatively consistent adherence since its adoption in 2007, some courts have recently suggested a departure from that precedent, noting the doctrinal and statutory inconsistencies underlying …

Activist Directors And Agency Costs: What Happens When An Activist Director Goes On The Board?, John C. Coffee Jr., Robert J. Jackson Jr., Joshua Mitts, Robert Bishop

Faculty Scholarship

We develop and apply a new and more rigorous methodology by which to measure and understand both insider trading and the agency costs of hedge fund activism. We use quantitative data to show a systematic relationship between the appointment of a hedge fund nominated director to a corporate board and an increase in informed trading in that corporation’s stock (with the relationship being most pronounced when the fund’s slate of directors includes a hedge fund employee). This finding is important from two different perspectives. First, from a governance perspective, activist hedge funds represent a new and potent force in corporate …

Japan's Constitution Across Time And Space, Carol Gluck

Center for Japanese Legal Studies

Constitutional reform is a matter of time, the time when the original and the revisions were drafted; and of space, the global context which comprises the transnational constitutional expanse that influenced all modern constitutions from the late eighteenth century on. Of the some 198 written constitutions now in force, more than half were promulgated during the past sixty years. The U.S. Constitution of 1787 is the oldest, and if one counts the 1947 Constitution as an amendment of the Meiji Constitution of 1889 – which formally and technically it was – Japan’s is the world’s tenth oldest written constitution still …

Rhetoric And Realism: The First Diet Debates On Japan's Military Power, Sheila A. Smith

Center for Japanese Legal Studies

Article 9 has been the focus of legislative debate since Japanese leaders concluded the San Francisco Peace Treaty in 1952, ending the U.S. Occupation of their country. Conservatives and progressives alike sought to consider what this new constitution meant for Japan’s postwar defenses, and how it was to be translated into a rearmament policy. Until a new law was passed to create the Self Defense Force in 1954, these Diet debates offer a fascinating window on the effort to define what Article 9 meant, and the issues that provoked contention among political parties.

Most of the critical questions regarding how …

Implications Of Revision Of Article 9 Of The Constitution Of Japan On The Defense Policy Of Japan, Hideshi Tokuchi

Center for Japanese Legal Studies

On December 20, 2018, a P-1 patrol aircraft of Japan’s Maritime Defense Force was flying within Japan’s exclusive economic zone (EEZ) in the Sea of Japan as part of ordinary intelligence collection and warning and surveillance activities, when it observed a destroyer, and a patrol and rescue vessel of the Republic of Korea (South Korea). While photographing the Korean vessels, the Japanese P-1 patrol aircraft was suddenly irradiated by a fire-control radar from the Korean destroyer. A crew member of the P-1 aircraft tried to communicate with the Korean ship in English, saying, “This is Japan Navy. This is Japan …

The Role Of Empirical Research And Dispute System Design In Proposing And Developing International Treaties: A Case Study Of The Singapore Convention On Mediation, S. I. Strong

Faculty Articles

Although specialists in international law are well-versed with the formalities associated with negotiating an international treaty, little if anything is known or written about how national and international actors decide to develop and pursue particular proposals for new international instruments. Indeed, the initial process of · determining which ideas to develop is almost entirely hidden from public view, even though these choices are critical to international law and policy, "since whoever controls the agenda has control over the scope of the governance system and its ability to change over time."

This Article seeks to provide insights into the "black box" …

The Internationalization Of Tax Disputes Issues And Options Of A Standing International Tax Court, Xueliang Ji

Cardozo International & Comparative Law Review

With the growing criticisms on the traditional investor-state arbitration mechanism, the European Union has proposed an innovative provision named the Investment Court System ICS, and it has introduced it in some significant bilateral investment treaties, like Comprehensive Economic and Trade Agreement CETA and Transatlantic Trade and Investment Partnership TTIP. In the meantime, as taxation is a component of the investment polies, the protection of the rights enjoyed by the foreign taxpayers matters as well. However, the current tax related dispute settlement methods also have several defects. This article attempts to incorporate the ICS in resolving tax related disputes and taking …

Techniques For Regulating Military Force, Monica Hakimi

Book Chapters

This chapter draws on the five chapters that follow—each of which describes the war powers in a single country—to identify and analyze some of the techniques for regulating this area of foreign affairs and then to reflect on the value of comparative research on it. Three basic techniques are: (1) to establish substantive standards on when the government may or may not use force, (2) to divide among different branches of government the authority to deploy the country’s armed forces, and (3) to subject such decisions to oversight or review. There is considerable variation, both across countries and over time …

Religious Slaughter And Animal Welfare Revisited: Cjeu, Liga Van Moskeeen En Islamitische Organisaties Provincie Antwerpen (2018), Anne Peters

Articles

The article comments on a Grand Chamber judgment by the Court of the European Union on animal slaughter according to Islamic prescriptions. The relevant European Union laws prescribe that religious slaughter without stunning of the animal may only take place in approved slaughterhouses. This causes a shortage during the Muslim Feast of Sacrifice in the Belgian province ofAntwerp. The EU law provisions are in conformity with the animal welfare mainstreaming clause of the Treaty on the Functioning of the European Union. Moreover, the EU regulation and its application in the concrete case does not violate the fundamental right of free …

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

The Anonymity Heuristic: How Surnames Stop Identifying People When They Become Trademarks, Russell W. Jacobs

Dickinson Law Review (2017-Present)

This Article explores the following question central to trademark law: if a homograph has both a surname and a trademark interpretation will consumers consider those interpretations as intrinsically overlapping or the surname and trademark as completely separate and unrelated words? While trademark jurisprudence typically has approached this question from a legal perspective or with assumptions about consumer behavior, this Article builds on the Law and Behavioral Science approach to legal scholarship by drawing from the fields of psychology, linguistics, economics, anthropology, sociology, and marketing.

The Article concludes that consumers will regard the two interpretations as separate and unrelated, processing surname …

When Alternative Dispute Resolution Works: Lessons Learned From The Bashingantahe, Alexander J. Buszka

Buffalo Law Review

No abstract provided.

The Legacy Of Colonialism On The Rule Of Law In Sub Saharan Africa, Joel H. Samuels

Articles

No abstract provided.

Divergence And Convergence At The Intersection Of Property And Contract, Giuseppe Dari-Mattiacci, Carmine Guerriero

Faculty Scholarship

In this Article, we study rules that solve the conflict between the original owner and an innocent buyer of a stolen or embezzled good. These rules balance the protection of the original owner’s property and the buyer’s reliance on contractual exchange, thereby addressing a fundamental legal and economic trade-off. Our analysis is based on a unique, hand-collected dataset on the rules in force in 126 countries. Using this data, we document and explain two conflicting trends. There is a large amount of first-order divergence: both rules that apply to stolen goods and those that apply to embezzled goods vary widely …

It Takes A Village: An Analysis Of Multilateralism And The Legal Mechanisms Designed To Prevent Violence Against Women, Madison Ivey

Scripps Senior Theses

Treaties and international organizations work together to create a global environment that protects the rights of a person and actively promotes the well-being of society. However, they do not necessarily guarantee the rights of everyone. Since women are not explicitly named in human rights documents, they are often not granted equal human rights. Therefore, it takes more than just international legal instruments to guarantee women's rights as human rights. A combination of civil society (NGOs), International organizations (IOs), and domestic government creates a perfect coalition to beat the barriers that must be overcome to fully protect women from violence.

The Case For American Muslim Arbitration, Rabea Benhalim

Publications

This Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated …

Rule Of Law With Asian Characteristics: Cultural Insights From The Occupy Central Movement In Hong Kong, Jeffrey E. Thomas

Faculty Works

No abstract provided.

The Supreme People's Court Annual Report On Intellectual Property Cases (2017) (China), Ida L. Knox, Ruixiang (Ray) Xu, Weichen Zhu

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The Annual Report summarizes intellectual property cases, such as patent, trademark, trade secrets, copyright, and unfair competition cases. This 2017 Annual Report examines 42 cases and includes general guidelines for legal application. This summary reflects the Supreme People’s Court’s thoughts and approaches for ruling on new and complex IP and competition cases.

Hostile Takeover Regimes In Asia: A Comparative Approach, Umakanth Varottil, Wai Yee Wan

Research Collection Yong Pung How School Of Law

The market for corporate control is animportant corporate governance mechanism for the discipline of corporatemanagers. However, the process and substance of the regulation of hostiletakeovers differs remarkably among various jurisdictions. Existing andinfluential scholarship has focused on the differences in regulation between UnitedStates (US) and the United Kingdom (UK), with the explanations being founded ininterest group politics. Influential as it is, the question is whether thetheory can be extended outside of the US and the UK, particularly to theirlegal transplants in Asia? In the last few decades, many of the Asianjurisdictions have drawn heavily from the US and the UK when …

The Outcome Of Influence: Hitler’S American Model And Transnational Legal History, Mary L. Dudziak

Michigan Law Review

Review of James Q. Whitman's Hitler's American Model: The United States and the Making of Nazi Race Law.

Judicial Conflict Resolution In Plea Bargaining As The Golden Mean Between The Adversarial And Inquisitorial Legal Systems, Golan Luzon

Cardozo Journal of Conflict Resolution

This article seeks to develop a better understanding of plea bargaining as a mechanism of judicial conflict resolution in criminal law. Plea bargaining plays a significant role in both the adversarial and inquisitorial legal systems. The article examines how the plea-bargaining model is designed in both legal systems by comparing two civil law countries (Italy and Germany) with two common law countries (England and Wales and the U.S.). I argue that two developments-a mechanism similar to plea bargaining in inquisitorial systems and judges' participation in the criminal plea bargaining negotiations in adversarial legal systems-are part of the same phenomenon seeking …

Remodifying Colombian Peace Process: A Critical Perspective And A Demand For Justice, Armando Martinez

Cardozo Journal of Conflict Resolution

Part II of this Note will give a background of the FARC, the FARC's impact throughout Colombia., and the Role of the ICC in the Colombian Peace Process. Part III of this Note will discuss the legal status of the peace deal between the FARC and the Colombian Government, as well as whether the ICC should intervene in the peace deal's implementation process. Lastly, Part IV discusses that the future Colombian presidential administration should consider modifying the current peace deal using interest-based facilitative mediation