Comparative and Foreign Law Commons^™

Globalization: Panacea For The World Or Conquistador Of International Law And Statehood?, Aaron J. Lodge

ExpressO

Recent powerful occurrences have led to an unprecedented world wide move in the direction of globalization. Globalization involves eliminating trade barriers, exchanging products and services across national borders, and the emergence of truly global corporations. Governments have embraced globalization in hopes of building stronger economies, creating jobs, and providing increased services and products. Debate has centered on the effect of globalization on sovereignty and the effect on individuals. However, the effect of globalization on international law has been largely ignored.

Today, international law—in the form of free trade agreements—enables the globalization process to occur faster than ever before. This article …

Assisted Reproduction In Germany And The United States: An Essay In Comparative Law And Bioethics , John A. Robertson

ExpressO

No abstract provided.

Partnerships With Monarchs: Univeiling And Re-Examining The Pattern Of "Third World" Economic Development In The Petroleum And Energy Sector, Diane M. Bales

ExpressO

No abstract provided.

Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis

ExpressO

Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes.

This article explores …

Leaving Money On The Table: Contract Practice In A Low-Trust Environment, Ruben Kraiem

ExpressO

Social capital – the level of trust inherent in a society – will affect the contracting practices that are considered standard, practical or fair. These practices in turn will help determine the parties’ positions as they approach their negotiation, how they will communicate, and what terms they will agree in any particular transaction. This is true not only for the small transaction, but also for large and complex deals. As a result, when operating in a low-trust environment, even sophisticated parties (who can bear the costs of tailoring an agreement to their particular case), will be prone to relinquish or …

Transnational Administration: International Data Transfers Under The European Privacy Directive, Francesca Bignami

ExpressO

No abstract provided.

Developing Internationally Uniform Liability Principles For Harms From Genetically Modified Organisms , Ryan C. Hansen

ExpressO

This paper analyzes the current legal principles regarding liabillity for harms from genetically modified organisms (GMOs) in the U.S. and E.U., as well as the various international policies and mechanisms affecting GMOs

Benin’S Constitutional Court: An Institutional Model For Enforcing Human Rights, Anna Rotman

ExpressO

This piece is based on field research the author conducted in Benin, West Africa during January 2003. The paper explores how the Court operates as a hybrid institution, by combining the competences traditionally associated with a constitutional court with the mandate of a national human rights commission. The paper argues that the Beninese Constitutional Court could provide an institutional model for guaranteeing human rights through a state-sponsored institution.

Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson

ExpressO

A timely piece proposing solutions for issues certain to be raised in the upcoming trials of the accused Taliban and Al Qaeda operatives captured in Afghanistan and detained on a U.S. military base in Cuba. In the article, I begin by examining the history and jurisdiction of Article I and Article III courts and then address the history and structure of the Al Qaeda and Taliban regimes. After considering the Constitution, federal statutes, politics, and geographical limitations, I conclude that Al Qaeda detainees should be tried in Article III courts under terrorism statutes and Taliban detainees, as military combatants, should …

“All Aboard!” An Overview Of The Continuing Debate Regarding The Enforceability Of Dispute Resolution Provisions Of Filipino Seamen Employment Contracts, Richard V. Blystone

ExpressO

No abstract provided.

A Gradual Shift In U.S. Privacy Laws Towards A Comprehensive Regime , Kamaal R. Zaidi

ExpressO

This paper examines the current trends in a predominantly sectoral U.S. privacy regime that appears to be becoming more comprehensive in nature with respect to data privacy protection. This trend has been greatly attributed to the European Union's comprehensive position on data privacy protection. This paper investigates the growth in U.S. data privacy protection in relation to federal and state legislative history, federal administrative procedures, and private industry efforts. This shift from sectoral to comprehensive regimes is significant in the backdrop of U.S-EU trade relations.

Universal Jurisdiction And Drug Trafficking: A Tool For Fighting One Of The World's Most Pervasive Problems , Anne H. Geraghty

ExpressO

Universal jurisdiction allows any state to exercise jurisdiction to prosecute a suspect wherever he is found, regardless of the location of his crimes, his nationality, or any other contacts with the prosecuting state. This article proposes that the United States and the international community should take two major steps toward embracing universal jurisdiction as a possible means of combatting drug trafficking. First, states should adopt an additional protocol to the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances clearly establishing universal jurisdiction for drug trafficking and thereby filling jurisdictional gaps in existing treaty law. Second, …

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …

The 'Ascent Of Man': Legal Systems And The Discovery Of An Environmental Ethic, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

A decade ago, firefighters in a warehouse on the Rhine in Switzerland washed chemicals, solvents, and mercury into the river, destroying all life in the river for miles, killing millions of fish, and endangering the water supplies of cities in Germany and the Netherlands. This tragedy galvanized the river valley states into action. They vowed to clean up the river, not just from that incident but from the effects of having used the river as a sewer for two centuries. But how clean is clean? The goal for this calculated plan, which will take decades to achieve, is symbolized by …

Comparative Environmental Law Perspectives On Legal Regimes For Sustainable Development, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

As the world's largest summit meeting ended in Rio de Janeiro in 1992, the heads of state and their representatives assembled at the United Nations Conference on Environment and Development (UNCED), commonly referred to as Agenda 21. They embraced Agenda 21 as “a dynamic programme” which can “evolve over time in the light of changing needs and circumstances,” and as a process making “the beginning of a new global partnership for sustainable development.” Agenda 21 is premised on two factual perspectives. First, the documentation of trends in the deterioration of the environmental conditions in many parts of the world is …

Islamic Law As A Source Of Constitutional Law In Egypt: The Constitutionalization Of The Sharia In A Modern Arab State, Clark B. Lombardi

Articles

No abstract provided.

The Decline Of The Western Nation State And The Rise Of The Regime Of International Federalism, John O. Mcginnis

Cardozo Law Review

The nation state is in decline, at least among the Western industrialized nations. Decline is a relative term. It does not suggest that the nation state has disappeared, but rather, that it is no longer as defining a feature of geopolitics as it once was, and will likely remain a less controlling feature. In the West, the era of the nation state was characterized by entities that approximated, even if they never attained, absolute control over their territory. First, the nation state had substantial control over economic affairs within its borders. While the world has always been to some extent …

The Persistent Nation State And The Foreign Sovereign Immunities Act, Mark L. Movsesian

Cardozo Law Review

One hears a great deal these days about the decline of the nation state. The concept of a sovereign country whose inhabitants share a common ancestry or culture is said to be obsolescent, if not already obsolete. Several factors, apparently, are responsible: the creation of supranational institutions like the European Union and the World Trade Organization; the growing influence of nongovernmental organizations; the emergence of a new global economy; and the formation of a worldwide consumer culture, to name just a few. The law, it is argued, must adapt.

Institutional Aspects Of International Governance, Elisabeth Zoller

Indiana Journal of Global Legal Studies

Professor Elisabeth Zoller discusses the domain and the methods of internationalg overnance. In PartI , she addresses the notion of the "international community." Professor Zoller argues that the international community is not really a community at all, but several "intertangled communities" with common interests. These common interests emerged as a result of several worldwide events, such as World War I and the Great Depression. The author asserts that common interests among nation states and priority setting are the two prerequisites necessary for international governance. In Part II, the authore xamines the methods of internationalg overnance, beginning with the proposition that …

The Extraordinary Counter-Majoritarian Power Of The New Supreme Court Of Nepal, Richard Stith

Law Faculty Publications

No abstract provided.

French And American Judicial Opinions, Michael Wells

Scholarly Works

In this Article, I examine the foundations of American judicial form, in particular the proposition that powerful instrumental considerations support the issuance of reasoned opinions. This project proceeds from the belief that the form of judicial opinions deserves serious scholarly attention despite the broad consensus about its value, because it frames the terms of debate on every issue courts confront. My analysis is built on the view that critical insights into the nature of one's own legal system can be gleaned only by "understand[ing] what [one's] system is not," a task that requires putting aside the internal perspective of a …

International Environmental Dispute Resolution: The Dispute Between Slovakia And Hungary Concerning Construction Of The Gabcikovo And Nagymaros Dams, Paul Williams

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Heinrich Kronstein And The Development Of United States Antitrust Law, David J. Gerber

All Faculty Scholarship

No abstract provided.

Pudong: Another Special Economic Zone In China?-An Analysis Of The Special Regulations And Policy For Shanghai's Pudong New Area, Bin Xue Sang

Northwestern Journal of International Law & Business

The Open Door Policy instituted in the late 1970s marked the beginning of economic reform in the People's Republic of China ("China"). Leading these reforms was the establishment of five special economic zones i and the opening of fourteen coastal cities.2 These special economic zones ("SEZs") and coastal cities, located along the east coast of China, serve as "windows" to attract foreign investment and technology.' So far, each of the five SEZs and the fourteen coastal cities has been successful in achieving these goals.

Resolving Commercial Disputes In China: Foreign Firms And The Role Of Contract Law, Roy F. Grow

Northwestern Journal of International Law & Business

It is not my intention to explicate China's Foreign Economic Contract Law (FECL), the Joint Venture Law (JVL), or the Foreign Enterprise Income Tax Law (FEITL). The analysis of these codes has been done in great detail by others.' Instead, I will examine the actual behavior of the most important actors governed by this set of laws-the Chinese and foreign enterprises that work with one another and which must find ways to resolve their competing claims. In this study, I will examine the tension between Chinese and foreign firms by focusing on several specific and limited questions having to do …

Public Law, Private Actors: The Impact Of Human Rights On Business Investors In China Symposium: Doing Business In China, Diane F. Orentlicher, Timothy A. Gelatt

Northwestern Journal of International Law & Business

Should companies invest at all in countries, like China, where severe human rights abuses are pervasive? If they do invest, should they restrict their operations to areas of the country that have a comparatively good human rights record? Are there basic principles that transnational companies should observe to ensure, at a minimum, that they do not become complicit in a host government's abrogation of universally-recognized human rights? Should such principles be enforced by Executive or congressional fiat, or should companies take primary responsibility for policing themselves? How can companies that wish to factor human rights considerations into their business decisions …

Obscured Visions: Policy, Power, And Discretion In Transnational Discovery, David J. Gerber

All Faculty Scholarship

This Essay addresses issues involving the discovery of information located outside the United States. Specifically, it deals with some of the problems created by the lack of appropriate limits on United States discovery procedures. Professor Gerber first analyzes the extent of judicial discretion in the United States in matters concerning extraterritorial discovery. The analysis encompasses the underlying legal bases for the exercise of discretion as well as the political and institutional factors that influence the uses of discretion.

Next, the Essay focuses on the international consequences of the virtually unlimited discretion courts in the United States exercise in discovery matter. …

The Warranty Of Quality In Sale Of Goods Under The Perspective Of The American And French Law, Renaud Baguenault De Puchesse

LLM Theses and Essays

While the United States’ common law system is characterized by diversity due to each state having its own set of rules, in certain areas there are nationwide legislative attempts of unification and standardization. One such attempt is the adoption of the Uniform Commercial Code which governs the sale of goods law in the United States. The French civil law system generally differs greatly from the American system in that it is primarily based upon statutes and codes. However, the American Uniform Commercial Code and the French Civil Code provide tangible, comparable bases to assess similarities and differences between American and …

"Criminal Records"--A Comparative Approach, Sigmund A. Cohn

Scholarly Works

There is in the United States a need to balance the interest of the public in the apprehension and conviction of criminals with that of individuals arrested but not convicted of any wrongdoing. As has been shown, some of the leading civil law countries have approached this goal in two ways: first, by not requiring an arrest in a great number of criminal cases and thus not furthering in the mind of the public the idea that arrest and criminal wrongdoing are identical, and second, by confining entries in criminal records, at least on principle, to final convictions of criminal …

Regulating Foreign-Based Institutions For Collective Investment: The German Statute, The American Experience, And The Oecd Standard Rules, Charles Baskervill Robson Jr.

Scholarly Works

The purpose of this article is to provide a framework for the comparative and critical examination of the West German Statute Concerning the Distribution of Foreign Investment Shares and the Taxation of their Proceeds of 28 July 1969 and the OECD Standard Rules. The reference point for this framework is the United States Investment Company Act of 1940 which is not only the most pervasive of the regulatory schemes affective collective investment institutions but also undoubtedly the scheme most familiar to most readers. This article will identify a number of the areas in which the American experience with the Investment …