Comparative and Foreign Law Commons^™

Toward A Theory Of Persuasive Authority, Chad Flanders

All Faculty Scholarship

The debate about the citation of foreign authorities has become stale. One side says that citing foreign authorities means being beholden to foreign sovereigns. The other side responds that this is nonsense, as the authorities are being used only for their "persuasive value." But do we even have a good idea of what it means to be a persuasive authority? My essay is the first to focus entirely on the notion of persuasive authority and to make the first steps towards providing a general theory of it. I make two major contributions. First, I try to show that there is …

The Kosovo Crisis: A Dostoievskian Dialogue On International Law, Statecraft, And Soulcraft, Antonio F. Perez, Robert J. Delahunty

Scholarly Articles

The secession of Kosovo from Serbia in February 2008 represents a stage in the unfolding of a revolution of "constitutional" dimensions in International Law that began with NATO's 1999 intervention in Kosovo against Serbia. NATO's intervention called into question the authority and viability of U.N. Charter system for maintaining international peace. Likewise, the West's decision in 2008 to support Kosovo's secession from Serbia dealt a further blow to the central post-War legal rules and institutions for controlling and mitigating Great power rivalry. Russia's later support for South Ossetia's secession from Georgia demonstrated the potential that the Kosovo precedent has for …

Habeas Corpus, Constructive Custody And The Future Of Federal Jurisdiction After Munaf, Karen Shafrir

University of Miami International and Comparative Law Review

In 2004-05, two American Citizens, Shaqir Omar and Mohamed Munaf were separately arrested in Iraq and placed in the Camp Cropper Military Facility, pending adjudication. Both prisoners filed writs of habeas corpus in the United States District Court for the District of Columbia. The primary issue that the lower courts grappled with was whether or not the courts had jurisdiction to hear the petitions. After various appeals, the United States Supreme Court concluded that the federal courts did have jurisdiction to entertain the habeas petitions but that the petitions would fail on the merits. This paper argues that the standard …

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Faculty Scholarship

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests.

This article - prepared for …

Victims And Promise Of Remedies: International Law Fairytale Gone Bad, Sanja Djajic

San Diego International Law Journal

The aim of this Article is to examine such developments and the current availability of remedies for human rights violations in general. The Author will also examine the appropriateness of such remedies and opportunities to pursue them. The Article starts by identifying remedies in international law. This is followed by a case study and analysis of attempts by several national judiciaries to grapple with remedies prescribed by international law, against the background of international and national remedies. In the course of examining the reasons for an inadequate remedial structure, the Article will focus on several national cases. They will illustrate …

Human Trafficking: Addressing The International Criminal Industry In The Backyard, Sarah King

University of Miami International and Comparative Law Review

Human trafficking is a modern phenomenon with ancient roots; it is a degrading institution that generates billions of dollars annually; it is an international problem that sits in our own backyards. Because human trafficking raises, among many issues, questions of international law, human rights violations, global economic concerns and matters related to organized crime, a discussion on human trafficking could take many forms. This paper will attempt define human trafficking in a modern context; discuss the interplay between international, national, and state specific human trafficking laws; and provide analysis on where we need to go as part of an international …

A Comprehensive Solution For A Targeted Problem: A Critique Of The Eu’S Home State Taxation And Ccctb Initiatives, Ilan Benshalom

Faculty Working Papers

This Article examines the European Commission's Home State Taxation and CCCTB initiatives. It argues that both proposals undermine the long-term objective of attaining a consolidated European corporate tax regime. It suggests an alternative strategy, which offers a comprehensive formulary-tax-allocation-solution in one of the hard to tax sectors, such as the financial sector. This strategy requires more efforts and political risk-taking, but would better promote the long-term objective of a consolidated EU corporate tax regime.

An edited version of this article is scheduled to be published in a future issue of European Taxation (an IBFD publication).

Reconstituting Japanese Law: International Norms And Domestic Litigation, Timothy Webster

Faculty Publications

This paper examines a number of lawsuits challenging racial discrimination in Japan’s private sector. Since Japan does not have a law banning private acts of racial discrimination, victims of racial discrimination invoke international human rights law to buttress their claims for compensation. I argue that Japanese judges are, by and large, receptive to these international law claims, but that the system for adjudicating racial discrimination disputes is inadequate. Specifically, a law that bans private acts of racial discrimination would put Japan in line with recently emergent global norms of equality.

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 …

Internalizing Gender: Why International Law Theory Should Adopt Comparative Methods, Darren Rosenblum

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 …

The World Court's Advisory Function: "Not Legally Well-Founded", David L. Breau

University of Miami International and Comparative Law Review

No abstract provided.

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form follow …

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 …

Hostis Humani Generi: Piracy, Terrorism And A New International Law, Douglas R. Burgess Jr.

University of Miami International and Comparative Law Review

No abstract provided.

South Korea's National Security Law: A Tool Of Oppression In An Insecure World, Diane B. Kraft

Law Faculty Scholarly Articles

In September 2004, the ruling party in South Korea, along with two opposition parties, called for the abolishment of the 1948 anti-communist National Security Law. The following month, Amnesty International, a long-time critic of the law, officially called for the law's repeal. The law had been enacted in 1948 in response to threats from communist North Korea, but has long been used by the government to silence legitimate opposition in South Korea. This Comment will examine South Korea's National Security Law as viewed by its domestic supporters and critics, as well as by the international community. Part I will consider …

Poverty, Agency And Resistance In The Future Of International Law: An African Perspective, Obiora Chinedu Okafor

Articles & Book Chapters

This article enquires into the likely posture of future international law with respect to African peoples. It does so by focusing on three of the most important issues that have defined, and are likely to continue to define, international law’s engagement with Africans. These are: the grinding poverty in which most Africans live, the question of agency in their historical search for dignity, and the extent to which these African peoples can effectively resist externally imposed frameworks and measures that have negative effects on their social, economic and political experience. International law’s future posture in these respects is considered through …

The Role Of International Law In Post-Conflict Constitution-Making: Toward A Jus Post Bellum For “Interim Occupations”, Jean L. Cohen

NYLS Law Review

No abstract provided.

In Honor Of Professor Harold G. Maier, David P. Stewart

Vanderbilt Journal of Transnational Law

Among his many other significant accomplishments and career achievements, Professor Maier can count a singular experience which few in the field of international law are privileged to enjoy-that of spending a year as the Counselor on International Law at the U.S. Department of State in Washington, D.C.

The Counselor occupies a senior position within the Office of the Legal Adviser. Organizationally, the incumbent reports to and works directly with the Legal Adviser and his Deputies in advising the Secretary of State and other senior officials on whatever fast-moving issues might occupy the foreign policy attention of the government at a …

Educating Lawyers For Transnational Challenges–The Globalization Of Legal Regulation, Steven Freeland

Journal of Legal Education

No abstract provided.

Is There A Curricular Core For The Transnational Lawyer?, Michael Bogdan

Journal of Legal Education

No abstract provided.

Seen And Not Heard?: Children's Objections Under The Hague Convention On International Child Abduction, Anastacia M. Greene

University of Miami International and Comparative Law Review

No abstract provided.

Foreign Law And The U.S. Constitution, Kenneth Anderson

Popular Media

The use of foreign law and unratified international treaty law by U.S. courts in U.S. constitutional adjudication has emerged as a major debate among justices of the U.S. Supreme Court, with Justice Anthony Kennedy writing for a majority approving the practice in the March 2005 decision of Roper v. Simmons, and Justices Antonin Scalia and Stephen Breyer undertaking an unusual public discussion of the practice in January 2005 at American University law school. This article examines the arguments made by Justices Kennedy, Scalia, and Breyer for and against the practice, setting them in the broader context of constitutional theory. It …

Minority Rights, Minority Wrongs, Elena A. Baylis

ExpressO

Many of the new democracies established in the last twenty years are severely ethnically divided, with numerous minority groups, languages and religions. In conflicts between minorities and the state, human rights and minority rights values are one set of battlefields, and claimed abuses are the weapons of choice for all sides.

National human rights institutions stand at the center of these conflicts. Minority groups should be a primary constituency for these institutions. Nonetheless, only a few of the human rights institutions in severely divided states report developing programs directed at minorities, and many shy away from involvement in their conflicts. …

Blocking Legal Evolution And Paying The Price: Property And Conflict In The Nigerian Highlands, Karol C. Boudreaux

ExpressO

This article examines current high levels of violent conflict in Plateau State in central Nigeria using an economic property-rights analysis that draws on the work of Harold Demsetz, Robert Cooter, Terry Anderson and Fred McChesney.

The thesis of the article is that this wide-spread violent conflict over resource use/access is tied, in important ways, to the passage of federal legislation in Nigeria that nationalized land. This legislation, I contend, blocked the continued evolution of customary land-law norms that had evolved to meet a variety of land-use needs and that had a relatively low-cost and transparent indigenous dispute resolution mechanism.

The …

The Legality Of Torture As A Means To An End V. The Illegality Of Torture As A Violation Of Jus Cogens Norms Under Customary International Law, Stephanie L. Williams

University of Miami International and Comparative Law Review

No abstract provided.

Trumpeting Justice: The Implications Of U.S. Law And Policy For The International Rendition Of Terrorists From Failed Or Uncooperative States, Matthew A. Slater

University of Miami International and Comparative Law Review

No abstract provided.

Global Law Teaching, Catherine Valcke

Journal of Legal Education

No abstract provided.

Globalizing Property: Incorporating Comparative And International Law Into First-Year Property Classes, M C. Mirow

Journal of Legal Education

No abstract provided.

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 …