Comparative and Foreign Law Commons^™

The Us Subprime Mbs Crisis: New Legislative Agenda And Potential Ramifications For Foreign Jurisdictions, Yuliya Guseva

Cornell Law School Inter-University Graduate Student Conference Papers

The recent US liquidity crisis, triggered by the failure of mortgage-related securities, produced long-lasting ramifications inside and outside of the US. International financial indicators and the housing markets demonstrate that the mortgage-related liquidity problems keep reverberating throughout the US and the global economy. In the US, even such giants as Freddie Mac and Fannie Mae, which were expected to inject market liquidity, have declared considerable losses from subprime MBS. The ongoing crisis provided a fertile ground for a number of publications and research. However, a range of fundamental issues regarding legislative responses to the US MBS crisis and its international …

The Bologna Process And Its Impact In Europe: It's So Much More Than Degree Changes, Laurel Terry

Faculty Scholarly Works

The Bologna Process is a massive, multi-year project designed to create the "European Higher Education Area" by the year 2010. it began ten eyars ago, when four European Union (EU) countries signed a relatively vague declaration. It has grown to include forty-six countries, including all of the EU Member States and nineteen non-EU countries. The Bologna Process countries have agreed on ten "action lines" for restructuring European higher education. These action lines are nothing short of revolutionary - they address everything from a three-cycle degree system (e.g., bachelor-master's-doctorate degrees), European-wide quality assurance efforts, mobility of higher education students and staff, …

Inside The Box - When Exercising Peremptory Challenges, Attorneys Should Keep In Mind The Three-Step Framework Of Batson/Wheeler, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford

Journal Articles

Excerpts from the Article

Embodied in the Universal Declaration of Human Rights is the evocative proposition that [e]veryone has the right to freedom of opinion and expression. But beneath that level of abstraction there is anything but universal agreement.

This book review argues that the dissonance between countries need not be challenged in pursuit of uniformity. Indeed, in those cases in which the differences reflect an appropriate balance of competing goods, it should be celebrated. Constitutional exceptionalism recognizes and celebrates each country's attempt to optimize the general welfare of that country by balancing competing goods in a manner consistent with …

The Assumptions Behind The Assumptions In The War On Terror: Risk Assessment As An Example Of Foundational Disagreement In Counterterrorism Policy, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This 2007 article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict. The article takes risk assessment in counterterrorism, using cost benefit analysis, …

Privacy's Other Path: Recovering The Law Of Confidentiality, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the …

Molecular Federalism And The Structures Of Private Lawmaking, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Living With The Bologna Process: Recommendations To The German Legal Education Community From A U.S. Perspective, Laurel S. Terry

Faculty Scholarly Works

The Bologna Process is a dramatic development that is less than ten years old, but already it has significantly reshaped higher education in Germany and in Europe. This article is based on my research regarding the history and objectives of the Bologna Process and Bologna Process implementation in Germany. It contains my reflections about the Bologna Process and German legal education and my recommendations to the German legal education community.

Internalizing Gender: International Goals, Comparative Realities, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

This Article uses the example of international women's political rights to examine the value of comparative methodologies in analyzing the process by which nations internalize international norms. As internalized in Brazil and France, the Convention on the Elimination of All Forms of Discrimination Against Women suggests possibilities for (and possible limitations of) interdisciplinary comparative and international law scholarship. Indeed, international law scholarship is divided between theories of internalization and neorealist challenges to those theories. Comparative methodologies add crucial complexity to internalization theory, the success of which depends on acknowledging vast differences in national legal cultures. Further, comparative methodologies expose important …

Dignity - The Enemy From Within, Guy E. Carmi

ExpressO

The manuscript challenges the use of human dignity as an independent free speech justification. The articulation of free speech in human dignity terms carries unwarranted potential consequences that may result in limiting free speech rather than protecting it. This possible outcome makes human dignity inadequate as a free speech justification.

The manuscript also demonstrates why articulations of the rationales behind the “argument from dignity” are either superfluous, since they are aptly covered by the “argument from autonomy,” or simply too broad and speech-restrictive to be considered a free speech justification. As a matter of principle, the nexus between freedom of …

Introduction To The Italian Legal System. The Allocation Of Normative Powers: Issues In Law Finding, Marinella Baschiera

International Journal of Legal Information

No abstract provided.

Compelled Self-Reporting And The Principle Against Compelled Self-Incrimination: Some Comparative Perspectives, Mark Berger

Faculty Works

This article examines the tension between mandatory self-reporting and identification statutes and the right to be free of compelled self-incrimination. The author reviews decisions addressing this issue taken by the European Court of Human Rights ('ECtHR'), the Privy Council, and the Supreme Courts of Canada and the United States. He then analyses applicable public policies and assesses the alternative approaches available to accommodate these conflicting interests.

Legal Approaches And The Contributions Of Case Law, Claudio Grossman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Gender Equality And Women's Solidarity Across Religious, Ethnic And Class Difference In The Kenyan Constitutional Review Process, Athena D. Mutua

Journal Articles

This paper examines Kenyan's women's struggle to gain new legal authority for gender equality and women's empowerment in the Kenya Constitutional Review process. Specifically it examines the efforts of the campaign to "safeguard the gains of women in the Draft Constitution," a campaign launched by a coalition of four civil society organizations in Kenya after the release of a new Draft constitution in 2002. Its focus is the 2002 Draft, the Draft's relationship to the current Kenyan Constitution and to recent constitutional proposals, from a gender perspective.

The constitutional review process is part of a larger movement to democratize the …

Fielding A Team For The Fans: The Societal Consequences And Title Vii Implications Of Race-Considered Roster Construction In Professional Sport, N. Jeremi Duru

Scholarly Articles in Law Reviews & Journals

Professional sports organizations' relationships with their players are, like other employer-employee relationships, subject to scrutiny under the antidiscrimination mandates embedded in Title VII of the Civil Rights Act of 1964. Professional sports organizations are, however, unique among employers in many respects. Most notably, unlike other employers, professional sports organizations attract avid supporters who identify deeply with the teams and their players. To the extent an organization racially discriminates, therefore, such discrimination creates the risk that fans will identify with the homogenous or racially disproportionate roster that results. The consequences of such race-based team identification are wide-reaching and potentially tragic. Through …

Domestic Violence In The Haitian Culture And The American Legal Response: Fanm Ayisyen Ki Gen Kouraj, Mary Clark

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Exporting U.S. Anti-Terrorism Legislation And Policies To The International Law Arena, A Comparative Study: The Effect On Other Countries' Legal Systems, Olga Kallergi

Cornell Law School Inter-University Graduate Student Conference Papers

The terrorist attack on the World Trade Center in New York on 9/11 set in motion a new era all over the world: an era of a world uniting against a common enemy, but also an era of insecurity and fear. Laws have been changed worldwide, nations have united against a common threat, legal theories and beliefs of centuries have been questioned, and civil liberties have been replaced by a need for national safety. Has this worldwide effort worked? Is our world a better place now that we are all fighting the same enemy? Did we learn from our past …

Perspectives On Brown: The South African Experience, Penelope Andrews

Articles & Chapters

In this paper the author examines the lessons of Brown v. Board of Education for the South African struggle for racial equality, South Africa's constitutional transition, and the significance of Brown in pursuing the right to education in South Africa. The author concludes that although Brown was of tremendous symbolic value to South Africans, the South African constitutional framework, negotiated in the early 1990s, reflected global human rights developments more substantially than it did the American civil rights struggle. This is demonstrated by the mandate of the South African Constitution to consider international law and by the limited references to …

Comparative Land Use Law: Patterns Of Sustainability, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

Land use scholars and practitioners in the United States trace the development of domestic land use law to 1916, when the City of New York adopted the nation's first comprehensive zoning law, and then on to 1926 when the U.S. Supreme Court declared zoning constitutional in Euclid v. Ambler Realty. Some have studied European influences stemming from late nineteenth century regulations and the urban design principles imported from the great cities of the era. Others know about the catastrophic London fire of 1666 and how it transformed society's understanding of why individual property rights, to some degree, must be subject …

Introduction To Comparative Legal Cultures: The Civil Law And The Common Law On Evidence And Judgment (Oral Presentation Of The Book By Antoine Garapon & Ioannis Papadopoulos, Juger En Amerique Et En France : Culture Judiciaire Française Et Common Law, Ioannis Papadopoulos

Cornell Law Faculty Working Papers

This book is the fruit of a basic idea, namely that comparative law is meaningless if it is regarded as the sole study of juxtaposed legal systems, regardless of their cultural dimension. The book’s main aim is to identify and analyze the basic cultural differences between the two great legal traditions of the West, the Continental and the Anglo-American one, through a thorough examination of the trial, and of judicial institutions more widely, as these are organized in France and the United States. For that purpose, after an introduction to the concept of legal culture and the basic notions of …

Taxation Of Spin-Off – U.S. And German Corporate Tax Law, Stefan W. Suchan

Cornell Law School J.D. Student Research Papers

Corporate law provides for a transaction commonly referred to as “spin-off”. The corporate enterprise is divided in (at least) two corporations. The stock of a controlled subsidiary will be distributed pro rata by a parent corporation to its shareholders which end up owning a brother/sister pair of corporate enterprises.

The Internal Revenue Code (IRC) in § 355 provides special rules for the distribution of stock and securities of a controlled corporation. The transaction is known as a “D reorganization”, if such a distribution follows the transfer by a corporation of all or a part of its assets to another corporation, …

Post-Enron: U.S. And German Corporate Governance, Stefan W. Suchan

Cornell Law School J.D. Student Research Papers

Only five years after Henry Hansmann and Reinier Kraakmann announced "the End of History of Corporate Law" – borrowing the words of Francis Fukuyama–, this observation seems at least questionable. Following two major failures of the “American Model” with the bankruptcy of Enron and WorldCom, the question of the "right" Corporate Governance regime is again under discussion.

Legislators around the globe assume that further development of Corporate Governance is necessary. There is consent for the need of improvement, but no clear answer on how to improve. A first step to solving the arising problems might be to evaluate the reasons …

Government Policy Towards Innovation In The United States, Canada, And The European Union As Manifested In Patent, Copyright And Competition Laws, Daniel J. Gifford

ExpressO

Abstract: This paper examines a number of government policies related to competition or intellectual property and affecting innovation for their welfare effects. Its premise is that the enhancement of social welfare is included among the purposes of competition and intellectual-property laws. It also assumes that innovation is a major contribution to long-run welfare. The paper then considers whether the policy initiatives under review furthered that purpose. First it considers U.S. and Canadian legislation designed to promote the entry of generic pharmaceutical products into the market and the response (or lack thereof) of both governments to the issue of regulatory delay …

Australia And The United States: Two Common Criminal Justice Systems Uncommonly At Odds, Paul Marcus, Vicki Waye

Faculty Publications

At first glance the criminal justice systems of Australia and the United States look strikingly similar. With common law roots from England, they both emphasize the adversary system, the roleof the advocate, the presumption of innocence, and an appeals process. Upon closer reflection,however, they appear starkly different. From both Australian and U.S. perspectives, the authorsexplore those differences, examining important features such as the exclusion of evidence, rules regarding interrogation, the entrapment defense, and the open nature of trials. The Article concludes with an analysis of the reasons for those differences, reasons that heavily relate back to the founding of the …

Constructing Competition Law In China: The Potential Value Of European And U.S. Experience, David J. Gerber

All Faculty Scholarship

No abstract provided.

Implementing Competition Law In Asia: Using European And U.S. Experience, David J. Gerber

All Faculty Scholarship

No abstract provided.

Why Can't We Do What They Do? National Health Reform Abroad, Timothy Stoltzfus Jost

Scholarly Articles

This article describes how other countries organize and finance their health care systems, and how the performance of those health care systems compares with that of the United States. It also examines why the United States, unlike all other developed countries, has failed to provide universal access to health care services.

Justice Scalia On The Use Of Foreign Law In Constitutional Interpretation: Unidirectional Monologue Or Co-Constitutive Dialogue, Melissa A. Waters

Scholarship@WashULaw

This short essay explores Justice Antonin Scalia's conservative alternative approach to recent efforts by other Justices to utilize foreign and international legal sources in the Supreme Court's jurisprudence. It discusses Justice Scalia's writings and remarks over the course of the 2003-2004 Supreme Court Term: On the one hand, Justice Scalia consistently denounced the use of foreign legal sources in constitutional interpretation, both in his concurring opinion in Sosa v. Alvarez-Machain and in his keynote address at the Annual Meeting of the American Society of International Law. On the other hand, in his dissent in Olympic Airways v. Husain, Justice Scalia …

Reparations For Apartheid's Victims: The Path To Reconciliation?, Penelope Andrews

Articles & Chapters

No abstract provided.