Comparative and Foreign Law Commons^™

Three Transnational Discourses Of Labor Law In Domestic Reforms, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Current labor law debates, in the United States and elsewhere, reflect entrenched discursive positions that make potential reform seem impossible. This Article identifies and examines the three most influential positions, which it names the “social,” “the neoliberal,” and the “rights-based” approach. It shows that these discursive positions are truly transnational in character. In contrast with conventional wisdom, which accepts the incompatibility of these positions, this Article creates a conceptual framework that productively combines elements from each to enrich the debates over labor law reform and to foster institutional imagination. Applying this framework, the Article examines the collective bargaining systems of …

Fair Measure Of The Right To Vote: A Comparative Perspective Of Voting Rights Enforcement In A Maturing Democracy, Janai S. Nelson

Faculty Publications

Constitutional text and government action are at times discordant in important ways. This discrepancy occurs in both mature and emerging democracies. It can result in the underenforcement of constitutional norms and implicate the rule of law. When the constitutional norm involves the right to vote, the gap between constitutions and governance inevitably triggers concerns about democracy as well. There is rich and ample debate within American legal scholarship over the effect of the underenforcement of constitutional norms on the scope and meaning of the norm. The arguments generally fall into one of two camps. One strand of argument suggests that …

From Kosovo To Catalonia: Separatism And Integration In Europe, Christopher J. Borgen

Faculty Publications

In July 2010 the International Court of Justice rendered its Advisory Opinion on the legality of Kosovo's declaration of independence and the Constitutional Court of Spain rendered an opinion concerning the autonomy of Catalonia. Two very different cases, from very different places, decided by very different courts. Nonetheless, they each provide insights on the issue of separatism in the midst of European integration. Does the Kosovo opinion open the door for other separatist groups? Does the process of European integration increase or undercut separatism? In addressing these questions, this article proceeds in three main parts. Part A briefly recaps the …

Methodological Challenges In Comparative Constitutional Law, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

My talk today, Methodological Challenges in Comparative Constitutional Law, has two parts. The first part focuses on the relationship between the purposes of comparison and the methodological challenges of comparison. The second part asks whether there are particular methodological challenges in comparative constitutional law as compared with other comparative legal studies.

Federal Forfeiture And Money Laundering: Undue Deference To Legal Fictions And The Canadian Crossroads, Max M. Nelson

University of Miami Inter-American Law Review

No abstract provided.

A Comparison Of The Freedom Of Speech Of Workers In French And American Law, Patrick Morvan

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

The Use And Abuse Of Foreign Law In Constitutional Interpretation, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

This article provides an exhaustive typology of the uses of foreign law in order to provide insight into whether foreign law can be appropriately used in constitutional interpretation, when it can be used, and what the stakes and parameters are in each case. In doing so, the article addresses two significant problems in the debate on foreign law. First, much of the commentary has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured the more basic question about the ways …

The Rule Of Law In Comparative Perspective, Mortimer N.S. Sellers, Tadeusz Tomaszewski

Books

This new volume on The Rule of Law in Comparative Perspective compares the different conceptions of the rule of law that have developed in different legal cultures. Lawyers and legal scholars from various legal systems describe the social purposes and practical applications of the rule of law, and how it might be improved in the varied circumstances of their own courts and politics.

This book will be of interest to lawyers, judges, public officials, and to all those wishing to improve the fundamental structures of their own legal systems, by bringing equal justice to every person subject to the power …

Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Faculty Scholarship

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …

Comparative Law As A Bridge Between The Nation-State And The Global Economy: An Essay For Herbert Bernstein, Richard M. Buxbaum

Faculty Scholarship

Professor Richard M. Buxbaum delivered the Fourth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2005 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In this paper, Richard Buxbaum is primarily concerned with the potential of comparative law as a method to bridge the disparities between the laws of nation-states and the needs of the globalized economy. Buxbaum investigates three separate roles for comparative law in closing this gap: First, he discusses the potential uses of comparative law with regard to …

Informal Land Subdivision And Real Estate Regularization: A Comparative Study Between Colombia And Brazil, Alexandre Dos Santos Cunha

University of Miami Inter-American Law Review

No abstract provided.

The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, Mark J. Sundahl

Law Faculty Articles and Essays

This article provides a fresh perspective on the originalism debate by undertaking a comparative study of constitutional interpretation in the United States and ancient Athens. By observing how the ancient Athenians resolved the same interpretational problems that face the Supreme Court today, we are able to gain a better understanding of the issues that drive the originalism debate. The study focuses on Athenian practice in 350 B.C., which falls late in the history of the Athenian democracy, well after the legal system had achieved its final form. Like the United States, Athens had a strong tradition of judicial review and …

Lawyers Without Borders, Catherine A. Rogers

Faculty Scholarship

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Nation-Building In The Penumbra: Notes From A Liminal State, Monica E. Eppinger

All Faculty Scholarship

The emergence of post-Socialist legal orders is reshaping some of the familiar terrain of comparative legal studies. This Article, invited as part of an effort to think about the topic of "What the Rest think of the West," reconsiders the vast legal re-codification projects that stand at the center of "nation-building" projects in formerly Socialist states. Such projects, and the rupture from which they emerge, challenge essentialist or static notions of identity and assumptions of where the West is or where the Rest begin. Anthropological concepts of "liminality" and "deixis" assist in understanding Ukrainian legal experts' thinking on legal reforms …

The Evolution Of Chinese Merger Notification Guidelines: A Work In Progress Integrating Global Consensus And Domestic Imperatives, Susan Beth Farmer

Faculty Scholarship

China is among the most recent entrants into global competition enforcement, having adopted the first competition law of general application, the Anti-Monopoly Law (AML) after more than a decade of drafting. The AML and Merger Notification Thresholds, rules issued by decree of the State Council, became effective on August 3, 2008. Both the law and the guidelines were subject to public review and comment, and went through a number of drafts before final adoption.

This article is a comprehensive comparison of merger standards across jurisdictions, with particular focus on the evolution of merger regulation in China. It comprises six parts; …

Is Law An Economic Contest? French Reactions To The Doing Business World Bank Reports And Economic Analysis Of The Law, Anne-Julie Kerhuel, Bénédicte Fauvarque-Cosson

Georgetown Law Faculty Publications and Other Works

The economic analysis of law has provoked strong reactions among French academics, in particular since 2004 when the first of the Doing Business reports was published. French jurists have joined forces to expose the methodological limits inherent to these reports, which rated France a long way behind other legal systems allegedly more able to facilitate business. In its first part, this article examines the various reactions to these reports, almost all of which were published in French only. In the second part, the focus is on the position of economic analysis in French law, its role, and, in particular, the …

John C. H. Wu At The University Of Michigan School Of Law, Li Xiuqing

Journal of Legal Education

No abstract provided.

German Equal Protection: Substantive Review Of Economic Measures, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Learning From Others: Sustaining The Internationalization And Globalization Of U.S. Law School Curriculums, James Maxeiner

All Faculty Scholarship

This address has three principal points: (1) An overview of how we are going about internationalizing the law school curriculum today in the United States; (2) Whether we are making as much progress as we should and how learning from others is central to sustaining our progress such as it is; and (3) What some of the obstacles to such learning are.

Proportionality In The Criminal Law: The Differing American Versus Canadian Approaches To Punishment, Roozbeh (Rudy) B. Baker

University of Miami Inter-American Law Review

No abstract provided.

Global Health Care Financing Law: A Useful Concept?, Timothy Stoltzfus Jost

Scholarly Articles

No abstract provided.

The Future Of The Economic Analysis Of Law In Latin America: A Proposal For Model Codes, Juan Javier Del Granado, M C. Mirow

Faculty Publications

Nothing excites civilian lawyers and judges more than commissions for codification. Codification is more than an academic enterprise. Codification projects directly cut across the interface between law and life. ALACDE intends to harness this Latin American interest in codification to bring the economic approach to Latin America. A new-generation law and economics civil and commercial code will be a conscious project to restate Roman law's usefulness for coping with today's problems. Through law and economics, Roman law will renew itself. As a paradigmatic private-law system, Roman law is eminently amenable to a state-of-the-art fusion with law and economics. Sensitivity to …

Privatization And Public Law Values: A View From France, Manuel Tirard

Indiana Journal of Global Legal Studies

This article uses a comparative approach to explore privatization and its consequences on public law values. It discusses the French model for protecting these values, which limits the scope of privatization and applies a legal regime within which public law norms play an active role. While it does not suggest that this model can or should be applied in the United States, it does express that the French experience can enrich American debates on the subject.

Democracy and the Transnational Private Sector, Symposium. Indiana University School of Law – Bloomington, April 12-13, 2007.

Toward The Next Generation Of Galanter-Influenced Scholars: The Influential Reach Of A Law-And-Society Founder, Jayanth K. Krishnan, Stewart Macaulay

Articles by Maurer Faculty

To say that Professor Marc Galanter's scholarship is diverse would be a woeful understatement. In his over forty years of writing, Galanter's work has covered topics including (but not limited to) torts, contracts, constitutional law, comparative law, empirical legal studies, the legal profession, legal anthropology, and South Asian studies. With Galanter's scholarship so heavily cited and respected, we see it as only fitting, particularly upon his recently turning seventy-five, to acknowledge his achievements in a symposium that reflects back on the years of his work. Serving as special editors to an issue forthcoming in the Duke Law School journal, Law …

The German Idea Of Freedom, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Codes And Hypertext: The Intertextuality Of International And Comparative Law, Marylin J. Raisch

Georgetown Law Faculty Publications and Other Works

The field of information studies reveals gaps in the literature of international and comparative law as part of interdisciplinary and textual studies. To illustrate the kind of theoretical and text-based work that could be done, this essay provides an example of such a study. Religious law texts, civil law codes, treaties and constitutional texts may provide a means to reveal the nature of hypertext as the new format for commentary. Margins used to be used for commentary, and now this can be done with hypertext and links in footnotes. Scholarly communication in general is now intertextual, and texts derive value …

Wong Kim Ark And Sentencia Que Declara Constitucional La Ley General De Migración 285-04 In Comparative Perspective: Constitutional Interpretation, Jus Soli Principles, And Political Morality, Patrick J. Glen

University of Miami Inter-American Law Review

No abstract provided.

Executive Fraud And Canada's Regulation Of Executive Compensation, Bo James Howell

University of Miami Inter-American Law Review

No abstract provided.

Legal Methods As A Point Of Reference For Comparative Studies Of Procedural Law, James Maxeiner

All Faculty Scholarship

This paper addresses the importance of comparative legal methods for study of comparative procedure.

Bankruptcy For The Poor?, Stephanie Ben-Ishai, Saul Schwartz

Osgoode Hall Law Journal

The conventional wisdom is that the poor are not heavy users of the insolvency system, because creditors are unwilling to take risks on the poor and because many of the poor are judgment-proof. However, credit is now widely available across the spectrum of income groups. In addition, poverty is often a temporary state for many Canadians; therefore, being judgment-proof is likewise temporary. Some of those who are poor at any point in time are in fact in need of bankruptcy protection. They have debts that they are unable to pay and little likelihood of being able to repay in the …