Comparative and Foreign Law Commons^™

History, Trips, And Common Sense: Curbing The Counterfeit Drug Market In Sub-Saharan Africa, Hannah Elizabeth Jarrells

Georgia Journal of International & Comparative Law

No abstract provided.

Justice, Reconciliation, And The Masculinist Way: What Role For Women In Truth And Reconciliation Commissions?, Penelope Andrews

Articles & Chapters

During periods of armed conflict, women and girls are frequently subjected to violence because of their gender. National governments have attempted to address this issue through transitional justice mechanisms like truth and reconciliation commissions. The record of women’s input and participation in these processes, however, is rather poor. In this article, I highlight the role of South Africa’s Truth and Reconciliation Commission (SATRC) and the opportunity the SATRC missed in failing to comprehensively confront andexamine the systemic nature of violence against women under apartheid. Many transitional justice mechanisms, the SATRC being one of the more vivid examples, have adopted a …

The Quest For Constitutionalism: South Africa Since 1994, Penelope Andrews

Other Publications

No abstract provided.

Executive Acquiescence To Constitutional Norms And Judicial Decision-Making In South Africa, Andrew Konstant, Shayda Vance

University of Miami International and Comparative Law Review

No abstract provided.

Native Title In Australia And South Africa: A Search For Something That Lasts, Justin Hunter

University of Miami International and Comparative Law Review

No abstract provided.

Habeas Data: Comparative Constitutional Interventions From Latin America Against Neoliberal States Of Insecurity And Surveillance, Marc Tizoc Gonzalez

Chicago-Kent Law Review

To cultivate the next twenty years of LatCrit theory, praxis, and community, the afterword looks back to LatCrit’s Critical Global Classroom (2003–04) (CGC), an ABA-accredited summer study-abroad program. The CGC invited U.S. law students to study comparative constitutionalism, law and society, and truth and reconciliation movements while sojourning Chile, Argentina, and South Africa under the question: “Shall the recent history of the Global South become the imminent fate of the Global North?” While enrolled in the 2004 CGC, the author learned about the extraordinary constitutional writ of habeas data, which various Latin American countries adopted as they reconstituted their …

Legal Aid And The Indigent Accused In South Africa: A Proposal For Reform, Lynn Berat

Georgia Journal of International & Comparative Law

No abstract provided.

Raped By The System: A Comparison Of Prison Rape In The United States And South Africa, Alexandra Ashmont

Pace International Law Review

The main objective of this article is to create overall awareness and to give people a real sense of the events that go on every day inside prison walls. The article is meant to show people that the way they think about prison and prison rape specifically is severely jaded. What happens behind prison bars should certainly not stay behind prison bars. The stories within this article are unlike any prison rape stories people have heard before. They are harsh, inhumane, and deeply disturbing. The only way to incite change is to open people’s eyes to the true conditions within …

African Aids Crisis: Implications From The Rise Of Managed Care In South Africa, J. Christopher Driver

Georgia Journal of International & Comparative Law

No abstract provided.

Mining For Gold: The Constitutional Court Of South Africa's Experience With Comparative Constitutional Law, Ursula Bentele

Georgia Journal of International & Comparative Law

No abstract provided.

Legal Protection For Groundwater-Dependent Ecosystems, Collin Gannon

Michigan Journal of Environmental & Administrative Law

This Note concerns the legal protection of groundwater-dependent ecosystems in the United States and abroad. By first describing the science and ecology of ecosystems that are dependent on groundwater and then surveying the current American legal system that fails to adequately protect groundwater-dependent ecosystems (GDEs), this Note proposes legal reforms that could vastly improve groundwater management systems. State protection of GDEs is sparse and often only operates indirectly as a result of states’ water policies focused on water quantity upkeep for consumptive purposes. Part I provides an overview of GDEs. Part II discusses state legal protection, including indirect state protection …

Applying The Third Un Convention On The Law Of The Sea To Living Marine Resources: Comparing The Approaches Of The United States And South Africa To Highly Migratory Species Management, Erica Wright

Georgia Journal of International & Comparative Law

No abstract provided.

Some Preliminary Thoughts On The Law Of Neighbors, James C. Smith

Georgia Journal of International & Comparative Law

No abstract provided.

Sexual Violence By Educators In South African Schools: Gaps In Accountability, University Of The Witwatersrand. Centre For Applied Legal Studies, Cornell Law School. Avon Global Center For Women And Justice, Cornell Law School. International Human Rights Clinic

Avon Global Center for Women and Justice and Dorothea S. Clarke Program in Feminist Jurisprudence

In many South African schools, educators have sexually harassed and abused the learners in their care. This serious human rights violation is widespread and well known. However, its actual incidence is difficult to determine as many cases of educator-learner abuse are never reported. Such harassment and abuse – which occurs with frequency not only in South Africa but also worldwide – has devastating consequences for the health and education of the learners, mainly girls, who experience it. Over the past decade, South Africa has adopted important laws and policies to address this grave human rights problem, yet sexual violence persists …

Transplanting And Customizing
 Legal Systems: Lessons From
 Namibian Legal History, Martin Cai Lockert

Richmond Journal of Global Law & Business

No abstract provided.

Wag The Dog: Using Incidental Intellectual Property Rights To Block Parallel Imports, Mary Lafrance

Michigan Telecommunications & Technology Law Review

Federal law grants owners of intellectual property rights different degrees of control over parallel imports depending on the nature of their exclusive rights. While trademark owners enjoy strong control over unauthorized imports bearing their marks, their protection is less comprehensive than that granted to owners of copyrights and patents. To broaden their rights, some trademark owners have incorporated copyrighted material into their products or packaging, enabling them to block otherwise lawful imports in contravention of the policies underlying trademark law. A 2013 Supreme Court decision has significantly narrowed the importation ban of copyright law, but there may be pressure to …

A Journey From The Heart Of Apartheid Darkness Towards A Just Society: Salient Features Of The Budding Constitutionalism And Jurisprudence Of South Africa, Dikgang Moseneke, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On April 4, 2012, Deputy Chief Justice Dikgang Moseneke of the Republic of South Africa delivered the Georgetown Law Center’s thirty-second annual Philip A. Hart Lecture: “A Journey from the Heart of Apartheid Darkness towards a Just Society: Salient Features of the Budding Constitutionalism and Jurisprudence of South Africa.”

Moseneke earned a BA in English and political science, as well as a B Juris degree from University of South Africa and later completed an LLB. Justice Moseneke began his professional career in 1976 as an attorney’s clerk in Pretoria. In 1978 he was admitted and practiced for five years as …

International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason

Pepperdine Dispute Resolution Law Journal

This article will explore the advantages of instituting appellate mechanisms in investor-state disputes and international commercial arbitration. Part II begins with a review of the WTO Appellate Body's development and workings, followed by an analysis of other appellate procedures for international trade law arbitration, including the MERCOSUR system's Permanent Court and the Grain and Feed Trade Association's appeals process. Part III examines the current methods for reviewing investor-state arbitration awards under ICSID and NAFTA. Part III goes on to advocate for the creation of an Appeals Facility, separate from current arbitral institutions, which would be empowered to hear appeals in …

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a …

Commercial High Technology Innovations Face Uncertain Future Amid Emerging "Brics" Compulsory Licensing And It Interoperability Frameworks, Lawrence A. Kogan

San Diego International Law Journal

The pathways that lead to the success of cutting-edge technologies are often fraught with risk, difficulty, and uncertainty. These issues are particularly prevalent under a regime involving lengthy time horizons for competent research, development, and commercialization, which may require regulatory approvals. These challenges are known to be endemic to capital-intensive technology development which requires significant follow-on funding, particularly in highly regulated industries such as life sciences (e.g., pharmaceuticals/biotechnology and electronic medical devices ) and clean technology (which may be subdivided into clean or renewable energy generation and clean or renewable energy efficiency technologies and services, the former having more direct …

Litigating Against An Epidemic: Hiv/Aids And The Promise Of Socioeconomic Rights In South Africa, Nathaniel Bruhn

Michigan Journal of Race and Law

With one of the highest incidence rates in the world, the HIV/AIDS epidemic has taken a large toll on South Africa. Despite medical advances that have made the disease more manageable, many South Africans still do not have access to the medicines needed to control the disease. At the same time, the Constitution of South Africa grants individuals far-reaching socioeconomic rights, including the right to access health care. This Comment explores the intersection of the socioeconomic rights and the HIV/AIDS crisis. Although the Constitutional Court has developed a deferential approach to enforcing socioeconomic rights, substantial room remains to litigate on …

Medical Malpractice And Compensation In South Africa, L. C. Coetzee, Pieter Carstens

Chicago-Kent Law Review

This article gives an overview of current medical malpractice law in South Africa. The following aspects are covered: The overall scheme for preventing and redressing medical errors and adverse events, including regulation, criminal and civil liability, and social and private insurance, and the relationships among these various systems; the details of the applicable liability and compensation systems, including criteria defining qualification for compensation, causation and "loss of chance," liability for failure to obtain informed consent, as well as matters of proof and gathering of evidence. The authors note the difficulty they had in obtaining empirical data on medical errors and …

Economic And Social Rights: The Role Of Courts In China, Randall Peerenboom

San Diego International Law Journal

This Article considers what the role of the courts could and should be in implementing ESR in China. Part II surveys recent global developments giving greater bite to economic and social rights, as well as some of the main controversies, debates, and approaches to promoting, protecting, and fulfilling ESR, with particular attention to the role of the courts. Part III provides a general introduction to the social, legal, political, and economic context in China, and contrasts the situation in China with South Africa?one of the global leaders in judicial implementation of ESR. The overall environment in China is, if not …

Political Institutions And Judicial Role In Comparative Constitutional Law, David Landau

Scholarly Publications

Comparative constitutional law scholarship has largely ignored political institutions. It has therefore failed to realize that radical differences in the configuration of political institutions should bear upon the way courts do their jobs. This Article develops a comparative theory of judicial role that focuses on broad differences in political context, and particularly in party systems, across countries. I use the jurisprudence of the Colombian Constitutional Court (supplemented by briefer studies of the Hungarian and South African Constitutional Courts) to demonstrate how differences in political institutions ought to impact judicial role. Because Colombian parties are unstable and poorly tied to civil …

Property Rights & The Demands Of Transformation, Bernadette Atuahene

All Faculty Scholarship

The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classical conception of real property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and thus can serve as a sanctuary for enduring inequality. This is particularly true in countries like South Africa and Namibia where—due to pervasive past property theft— land reform is essential because there are competing legitimate claims to land. Oddly, the classical conception is …

Property Rights & The Demands Of Transformation, Bernadette Atuahene

Michigan Journal of International Law

Countries like those in Southern Africa will never emerge from the indomitable shadow of inequity and the serious threat of backlash unless real property is redistributed; but, the conception of property these countries explicitly or implicitly adopt can adversely affect their ability to redistribute. Under the classical conception of real property (the classical conception), redistribution is difficult because title deed holders are a privileged group who are given nearly absolute property protection. Strangely, the classical conception is ascendant in many transitional states where redistribution is essential. The specific question this Article addresses is: for states where past property dispossession has …

Betting On Dog Racing. The Next Legalised Gambling Opportunity In South Africa? A Cautionary Note From The Regulation Of Greyhound Racing In Great Britain, Marita Carnelley

UNLV Gaming Law Journal

This article commences with a brief overview of the history of dog racing in South Africa. It provides a synopsis of South Africa’s current legal position on dog racing and the betting thereon. The main question this article addresses is whether there is any policy reason why dog racing and wagering should not be legalised and regulated. Furthermore, some comments are included discussing how such regulation should fit into the broader existing gambling regulatory framework should the legislature make the decision to legalise dog racing and wagering.

The article concludes with a discussion of the greyhound racing industry in Britain …

An Analysis Of Article 28 Of The United Nations Declaration On The Rights Of Indigenous Peoples, And Proposals For Reform, David Fautsch

Michigan Journal of International Law

The purpose of this Note is two-fold: first, to demonstrate why the standards set out in Article 28 require further clarification, and second, to propose reforms (both inside and outside of the United Nations framework) that might benefit indigenous peoples claiming land rights.

Feminism As Liberalism: A Tribute To The Work Of Martha Nussbaum Symposium: Honoring The Contributions Of Professor Martha Nussbaum To The Scholarship And Practice Of Gender And Sexuality Law: Feminism And Liberalism, Tracy E. Higgins

Faculty Scholarship

In this essay, I revisit and expand an argument I have made with respect to the limited usefulness of liberalism in defining an agenda for guaranteeing women's rights and improving women's conditions. After laying out this case, I discuss Martha Nussbaum's capabilities approach to fundamental rights and human development and acknowledge that her approach addresses to a significant degree many of the objections I and other feminist scholars have raised. I then turn to fieldwork that I have done in South Africa on the issue of custom and women's choices with regard to marriage and divorce. Applying Professor Nussbaum's capabilities …

The Developing Equality Jurisprudence In South Africa, Karthy Govender

Michigan Law Review First Impressions

Apartheid was technically about separateness, but it was fundamentally about inequality. The founding premise of the ideology was to preserve the total hegemony of white South Africans. The liberation organizations opposing the apartheid regime sought to affirm that the country belonged to all those that lived in it. Thus, it is unsurprising that the commitment to equality is one of the founding values of the Constitution and an indelible thread woven throughout the fabric of the Bill of Rights. After some misstatements about certain rights being more important than others, courts have interpreted rights in the Bill of Rights to …