Comparative and Foreign Law Commons^™

Miranda In Taiwan: Why It Failed And Why We Should Care, Shih-Chun Steven Chien

Law Faculty Articles and Essays

In 1997, the Taiwanese legislature amended the Code of Criminal Procedure to incorporate the core of the American Miranda rule into the legal system. The Miranda rule requires police officers and prosecutors to notify criminal suspects subject to custodial interrogation of their right to remain silent and their right to retain legal counsel. In subsequent amendments, the legislature enacted a series of laws to further reform interrogation practices in the same vein.

What happened next is a study in unintended consequences and the interdependence of law and culture. Using ethnographic methods and data sources collected over the past four years …

Reproductive Privacy In The World: Critical Examination Of June Medical Services, L.L.C. V. Russo And Buck V. Bell, Kumiko Kitaoka

Washington and Lee Journal of Civil Rights and Social Justice

Using insights from Professor Stephen A. Simon’s Universal Rights and the Constitution, this Article argues that national courts should continue to assume an active role in the protection of privacy rights by giving due consideration to the nature of the privacy right in combination with the merits of the universal right theory. This Article then demonstrates that both foreign national courts and domestic state courts have recognized the right to procreate and key aspects of the right to abortion as fundamental rights.

Part II introduces the universal right theory, explaining why the theory is particularly relevant to the protection …

Law And Liberty On The Moon, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

As on Earth, so in outer space . .

Most of those participating in humankind’s venturing into outer space, in particular to the extent of establishing settlements there and thereby providing for a second home for humanity, would hope or even assume that humankind in so doing might be able to avoid the sometimes rather bloody developments that accompanied settlement in far-away territories on Earth. However, at least in the legal area, with a view to its role as providing not only justice and fairness but also predictability and foreseeability, logic dictates that terrestrial laws and experiences of these laws …

Comparing Russian And Canadian Climate Policy: Protecting Arctic Interests?, Meinhard Doelle, Roman Dremliuga

Articles, Book Chapters, & Popular Press

The global human influence on the climate is growing at an alarming pace. This trend appears doomed to continue. Polar regions are feeling the effects first. This means that if the impacts of climate change serve to motivate effective policies, polar regions could be a good place to look for climate policy innovation. It is within this context that this article considers Arctic climate policy in Russia and Canada. The basic question posed is whether the unique and immediate threat climate change presents in the Arctic is reflected in progressive laws and policies with respect to four key areas: mitigation, …

A Law And Politics Contextualization Of Corporate Activism In Nigeria’S 2020 Anti-Police Brutality Campaign, Okanga Ogbu Okanga

Articles, Book Chapters, & Popular Press

Corporate activism – the progressive pursuit of social justice causes by corporations – is a growing global phenomenon. There are increasing expectations and, in many cases, demands that corporations pull off their gloves to actively confront sociopolitical issues bedevilling their communities. Emerging scholarship suggests that corporate activism is influenced by various factors, including the ethical, political, and commercial orientations of corporate minds and the relative political and legal landscape within which corporations operate. Adopting a qualitative research mechanism that reflects on open-source information about relevant actors, collected from blogs, Twitter, and news sites, as complemented by a broad variety of …

Intangible Justice? Intellectual Property Disputes And Canadian Small Claims Courts, Anthony D. Rosborough, Reagan Seidler

Articles, Book Chapters, & Popular Press

This article investigates the jurisdiction and institutional competence of Canadian small claims courts and tribunals with respect to complex claims, and in particular, intellectual property (IP) claims. Recent research points to an increase in these types of claims. A doctrinal analysis finds small claims bodies have wide jurisdiction over intellectual property infringement, contract, and licensing disputes. They can also rule on issues of validity, though they cannot affect registrations in the databases of the Canadian Intellectual Property Office. Remedies including damages, accountings, and the recovery of infringing goods are available in many provinces. As to their capacity, the article assesses …

Not Just The Historians: Anne Orford’S Insights And The Suspicion Between International Law And Philosophy, Steven R. Ratner

Articles

International Law and the Politics of History is nothing short of cri de coeur directed at international lawyers and historians, the two disciplinary co-conspirators in international law's so-called turn to history. Rather than embracing what appears to be a mutually beneficial model of interdisciplinary collaboration, Anne Orford instead sees international lawyers as evading their responsibilities as decisionmakers-and indeed makers of both the discipline and its underlying norms-and historians as self-satisfied purveyors of truths that they themselves know are contested and instrumental. As much as she blames historians for acting with blinders, her main audience is international lawyers (mostly the academic …

Of Rights And Regulation, Stephen W. Sawyer, William J. Novak

Book Chapters

This chapter explores the development of social provisioning as a matter not of right but of democratic administration in France and the United States in the nineteenth century. The authors take issue with conventional chronologies of rights development, which see civil and political rights being developed in the eighteenth and nineteenth centuries, with social rights appearing in the twentieth. Such categories and sequencing obscure the ways in which democratic administrations took the problem of social provisioning seriously. A history of socio-economic rights cannot be distinguished from the less formal technologies of socio-economic regulation that were an integral part of the …

Riding The Wave: Fairness For Foreign Investors In India’S Impending Insolvency Tsunami, Nicole Mecca

Fordham Journal of Corporate & Financial Law

Reminiscent of the warning signs of a tsunami, bankruptcy and insolvency courts across the globe have been eerily calm despite unprecedented conditions during the COVID-19 pandemic. The full extent of the pandemic’s effect, including a tidal wave of wide-spread corporate and financial sector harm and wide-spread economic distress, remains to be seen. Much like victims of natural disasters, unsuspecting and increasingly delayed courts will find themselves totally overwhelmed. The inconvenience felt by the courts is distinct, however, from potential harm to financial investors. Although investors could also be harmed by these judicial conditions, they knowingly assumed certain financial risk when …

Effectiveness Of The Existing International Humanitarian Law Provisions In Protecting The Natural Environment During Internal Armed Conflicts, Joharah M. Alkahtani

Dissertations & Theses

The environment is inherently at risk in any armed conflict and the natural environment is always a victim of wars. In order to properly protect the environment, the international community must explicitly recognize the civilian nature of the environment and bar all damages to it notwithstanding its extent, longevity and severity. The current study focuses on the environmental protection during armed conflicts. In World War I, parties employed the indiscriminate use of chemical weapons as a way of gaining military advantage over their enemies. The world responded by adopting the Convention on the Prohibition of the Development, Production, Stockpiling and …

La Liberté D’Expression Aux États-Unis Et En France, Elisabeth Zoller

Books & Book Chapters by Maurer Faculty

A chapter from the Ministry's report, RÉPUBLIQUE ÉCOLE LAÏCITÉ

The Global Red Scare And The Anti-Worker Repressive Model, 1913-1927, Christopher M. Roberts

Cardozo International & Comparative Law Review

This article considers the extensive repressive measures enacted around the world during and in the wake of the First World War. While repressive developments in the World War I and post-war periods have previously been examined in different national contexts, little scholarship has adopted a more global lens. To better organize and consider the relevant developments, this article develops a typology of six different categories of public order governance into which the majority of the repressive measures of the period may be classified: the passage of new laws; the development of new institutions; raids, arrests, prosecutions, and other judicial and …

Is A Science Of Comparative Constitutionalism Possible?, Madhav Khosla

Faculty Scholarship

Nearly a generation ago, Justice Scalia and Justice Breyer debated the legitimacy and value of using foreign law to interpret the American Constitution. At the time, the matter was controversial and invited the interest of both judges and scholars. Foreign law had, after all, been relied on in significant cases like Roper v. Simmons and Lawrence v. Texas. Many years on, there is still much to be debated — including the purpose and potential benefits of judicial engagement with foreign law — but “comparative constitutional law” has unquestionably emerged as a field of study in its own right. We …

Epilogue: The Elephant In The Room, Jamal Greene

Faculty Scholarship

This chapter explores the contrasting role of proportionality discourse in the USA and in Latin America. Although the USA provided an important constitutional model for Latin American countries, the latter does not share the former’s disinterest in the proportionality framework, which is considered foreign to the legal tradition of the country despite the fact it is arguably harmonic with the approach to law creation in the common law tradition. The chapter seeks possible explanations for the contrast in four elements: the importance in Latin America of centralized, specialized constitutional jurisdiction; the tradition of borrowing constitutional jurisprudence from abroad; the openness …

Letter From The Editor, Ijeoma Oti

Notre Dame Journal of International & Comparative Law

No abstract provided.

Making Sex Work Safe: Using A Consensus-Based Approach To Create Meaningful Policy For Sex Workers, Alexandra Sandler

Cardozo Journal of Conflict Resolution

Sex work has been described as the world's oldest profession, yet it has remained nearly unchanged in the U.S., largely due to the conflation between sex work and sex trafficking. The term "sex worker" refers to a person who willingly works in the industry to make a living. Sex trafficking, though, is a form of modern-day slavery, in which an individual performs commercial sex as a result of force, fraud, or coercion. The conflation of sex work and sex trafficking in the U.S. has resulted in oppressive policies that undermine the rights and safety of sex workers. With the exception …

Women's Rights And Customary Justice In Afghanistan: A Review Of Jirgas Under Cedaw's Access To Justice Components, Fernanda Canessa

Cardozo Journal of Conflict Resolution

Afghanistan became the first Muslim country to ratify the Convention on the Elimination of All Forms of Discrimination against Women ("CEDAW") with no reservations, understandings, or declarations ("RUDs") on March 5, 2003. This event is notable considering that the majority of Muslim countries that ratified the treaty included reservations holding Islamic Sharia law above the tenets of the Convention. The government abstained from making this type of reservation, demonstrating its intent to follow international norms as it entered a new phase of democratic statebuilding.

Speaking Arabic In Israel: "He Whose Hand Is In The Water Is Not Like Whose Hand Is In The Fire", Yael Efron, Mohammed S. Wattad

Cardozo Journal of Conflict Resolution

No abstract provided.

Extra Life: An Odr Mediation System As A Moderation Tool For Live Streaming Platforms, Myeonghwan Cha

Cardozo Journal of Conflict Resolution

No abstract provided.

Japan’S Transnational War Reparations Litigation: An Empirical Analysis, Timothy Webster

Faculty Scholarship

Negotiating war reparations is traditionally the province of the political branches, yet in recent decades, domestic courts have presided over hundreds of compensation lawsuits stemming from World War II. In the West, governments responded to these lawsuits with elaborate compensation mechanisms. In East Asia, by contrast, civil litigation continues apace. This Article analyzes eighty-three lawsuits filed in Japan, the epicenter of Asia’s World War II reparations movement. While many scholars criticize the passivity of Japanese courts on war-related issues, this Article detects a meaningful role for Japanese courts in the reparations process: awarding compensation, verifying facts, and allocating legal liability. …

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Faculty Scholarship

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or anti-democratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

The Surprising Virtues Of Data Loyalty, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …

Third Amendment To The Chinese Copyright Law, Peter K. Yu

Faculty Scholarship

Since July 2011, China has actively explored ways to upgrade its copyright law. Although the law was already amended the year before, only two changes were made at that time. The last time Chinese copyright law undertook a major overhaul was more than two decades ago, two months before the country became the 143rd member of the WTO in December 2001.

On November 11, 2020, the Standing Committee of the National People's Congress of China finally approved the Third Amendment to the Chinese Copyright Law. Covering a wide range of issues from eligibility to ownership and from enforcement to anti-circumvention …

Table Of Contents - Cardozo International & Comparative Law Review, Vol. 5, Iss. 2

Cardozo International & Comparative Law Review

No abstract provided.

Tightwire Of National Interests And Publicity In The Evolved Process Of Democratization And Constitutional Transformation: Lessons From Taiwan, Hsin-Hsuan Lin

Cardozo International & Comparative Law Review

Achieving an optimal balance between government secrecy and democratic accountability has led to long-standing questions in the discussion of contemporary constitutionalism. To address the complex contemporary phenomenon of government secrecy within a democratic society, a more in-depth understanding of its tension with democratic accountability and transparency is essential. This article provides a descriptive overview of Taiwan's legal system, its legal implications in relation to government secrecy, and its normative implications. The article begins with a historical background of Taiwan's legal system, focusing on legal reform as it relates to government secrecy. The article investigates the complex interactions between the administrative, …

Remedying Online Shaming, Miriam Marcowitz-Bitton, Hillel Sommer

Cardozo International & Comparative Law Review

Shaming is an act of subjecting someone publicly to shame, disgrace, humiliation, or disrepute.1 This act has challenged many existing legal regimes. Its effects are devastating, and efforts to cope with it within the current legal framework have been largely unsuccessful, mainly due to the challenges posed by anonymous, online shaming. This article rethinks the remedies currently available to handle shaming. It touches upon both civil and criminal remedies and penalties, considering the role that the right to be forgotten can play in handling shaming effectively. The article argues that only by complementing existing remedies with victims' rights can we …

Same As It Ever Was: The Tijuana River Sewage Crisis, Non-State Actors, And The State, James M. Cooper

Cardozo International & Comparative Law Review

The article examines the ongoing environmental crisis caused by sewage contamination in the Tijuana River Valley, highlighting the inadequacy of current governance structures and international agreements in addressing transboundary pollution. It critiques the growing influence of non-state actors (NSAs) in border governance, arguing that privatization and deregulation undermine state accountability and sovereignty. The analysis emphasizes the need for a more effective and sustainable framework to manage environmental devastation and balance public and private interests at the U.S.-Mexico border.

Rule Of Law And International Human Rights, Vincent J. Samar

Cardozo International & Comparative Law Review

This article reviews the field of international human rights with particular attention to the way that the International Court of Justice, the International Criminal Court, the Human Rights Committee, and local domestic courts operate to resolve human rights cases. It first notes what internationally recognized human rights there are and the sources that give rise to them. It then explains how relativism enters human rights decision-making, especially at the domestic court level, in part because a common grounding for the human rights propounded was never adopted. Even at the level of the International Court of Justice, its failure to include …

The Commodification Of Public Land Records, Reid Kress Weisbord, Stewart E. Sterk

Articles

The United States deed recording system alters the “first in time, first in right” doctrine to enable good faith purchasers to record their deeds to protect themselves against prior unrecorded conveyances and to provide constructive notice of their interests to potential subsequent purchasers. Constructive notice, however, works only when land records are available for public inspection, a practice that had long proved uncontroversial. For centuries, deed archives were almost exclusively patronized by land-transacting parties because the difficulty and cost of title examination deterred nearly everyone else.

The modern information economy, however, propelled this staid corner of property law into a …

Law, Religion, And The Covid Crisis, Mark L. Movsesian

Faculty Publications

This essay explores judicial responses to legal restrictions on worship during the COVID-19 pandemic and draws two lessons, one comparative and one relating specifically to U.S. law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the United States, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the United States, which rejects judicial line-drawing and balancing in favor …