Comparative and Foreign Law Commons^™

Perspectives On The Law Of Contorts: A Discussion Of The Dominant Trends In West German Tort Law, Gert Bruggemeier

UC Law SF International Law Review

Contract and tort law have usually been doctrinally separated. The dominant phenomenon of social regulation, however, today overshadows the autonomous assumption of obligations through contract and the imposition of obligations through general tort rules. The author examines the development of West German tort law and shows that tort law has increasingly become a means of social regulation through judge-made rules of conduct. Special judge-made tort law regulates the social behavior of previously autonomous market citizens. The author argues that this trend toward social regulation through special tort law has rendered nineteenth century legal ideas about the relationship between contract and …

Decommissioning Nuclear Power Plants: The United States, West Germany, And Canada, Thomas Giller

UC Law SF International Law Review

Despite recent considerations weighing against future 'development of nuclear power there are problems created by the substantial number of existing nuclear power plants. Whereas the building and operation of nuclear facilities are covered by detailed legislation, very little attention has been given to nuclear reactor decommissioning. Decommissioning involves the permanent shutdown of a nuclear facility and it is a significant concern as nuclear power plants grow older and more obsolete. This Note discusses what decommissioning is and why it is important and examines the decommissioning policies of three nations with active nuclear power industries: the United States, West Germany, and …

Extraterritorial Application Of United States Securities Law: A Matrix Analysis, Marc H. Morgenstern

UC Law SF International Law Review

The antifraud provisions of the Securities Act of 1933 and Securities Exchange Act of 1934 may apply to securities sold exclusively to nonresident aliens. The extraterritorial application of these provisions is allowed only when United States Courts have subject matter jurisdiction over the transaction under principles of international law. Case law examines the relationship among four variables to determine whether United States Courts will assert or deny jurisdiction. This Article proposes a matrix model that uses these four variables to assist in the determination of jurisdiction. The matrix model is a tool which clarifies the variables involved in the jurisdictional …

Conflict Of Laws, Product Liability And The Substantive Law Of New Zealand In Bennett V. Enstrom Helicopter Corp., Patricia Barlow

UC Law SF International Law Review

The Accident Compensation Act (ACA) of New Zealand provides a uniform system of rehabilitation and compensation for personal injury or death resulting from accidents in New Zealand. This Article examines how the private international law provisions of the Act apply in aviation product liability. The Sixth Circuit case of Bennett v. Enstrom Helicopter Corp. is extensively analyzed. The author argues that the trial and appellate courts in Bennett, in holding the ACA has the exclusive remedy, misinterpreted substantive New Zealand law on recovery for injury or death. She mentions that the ACA left areas of "residual liability" and that Bennett …

West German Television Law: An Argument For Media As Instrument Of Self-Government, Christopher Witteman

UC Law SF International Law Review

With the development of cable television, direct broadcast satellite and other new broadcast technologies, television systems throughout the world have been thrown into a period of rapid transition. Against this quickly evolving background the West German Constitutional Court has held for the last 33 years to a vision of television as a catalyst of community and servant of the democratic process. This Note is the first American examination of the legal basis for what has been a public broadcasting monopoly in West Germany. The Note offers a close analysis of the three seminal television decisions of the Constitutional Court, as …

Licensing The Exportation Of Nuclear Materials: Responsibility To The Global Environment, Elizabeth Ann Lawrence

UC Law SF International Law Review

The policy of the United States to supply nuclear power plants and materials to selected foreign nations raises questions concerning environmental concerns, nuclear weaponry problems, and foreign relations considerations. This Note examines the statutory scheme by which Congress has sought to balance these factors and the role of the judiciary in implementing this plan. Specifically, a recent case involving the Nuclear Regulatory Commission's grant of a license for exporting nuclear plant materials to the Philippines is reviewed. The author concludes that this litigation failed to provide adequate guidance for the Commission and for courts in future cases. The author offers …

Since The Breakup: Developments And Divergences In Ancom's And Chile's Foreign Investment Codes, Michael G. Thornton

UC Law SF International Law Review

Chile withdrew from the Andean Common Market (ANCOM) in 1976 and ceased to follow ANCOM's foreign investment code Decision 24. Since that time ANCOM and Chile have effected changes in their foreign investment codes. ANCOM introduced flexibility into Decision 24 which brought the Decision more in line with prevailing economic conditions without altering its basic theoretical outlook. Chile, on the other hand, passed an amendment to its already liberal national foreign investment statute. The amendment further opened the door to unrestricted foreign investment in Chile and has, in the author's view, contributed to a loss of national control over the …

Pure Comparative Law And Legal Science In A Mixed Legal System, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

A Right Of Fair Dismissal: Enforcing A Statutory Guarantee, Janice R. Bellace

University of Michigan Journal of Law Reform

Support for the concept that employees should be protected against wrongful dismissal continues to grow in this country. Yet, many advocates of protection have thus far refrained from venturing into the legislative arena. Even though the movement to achieve this protection is still at an early stage, it is not too soon to focus on specific proposals designed to translate ideals into protections. By failing to coalesce behind a single proposal, supporters have retarded the progress of the movement. Without a proposal for specific legislation, supporters lack a rallying point and legislators have nothing concrete to debate. This Article attempts …

The Political Offense Exception As Applied In French Cases Dealing With The Extradition Of Terrorists, Thomas E. Carbonneau

Michigan Journal of International Law

This article does not attempt to deal with all of the multifarious aspects of contemporary terrorism; its ambition is much more modest in scope, centering upon traditional legal mechanisms and doctrines that can be adapted to deal with terrorism. Using the decisional law of France as an illustrative model, this article analyzes the transnational and political character of terrorist acts and seeks to establish the implications of those characteristics for litigation dealing with the extradition of terrorist offenders. Several assumptions underlie the analysis. First, the effort to repress international crime is seen as a laudable objective of the international legal …

Extradition From Israel, M. Dennis Gouldman

Michigan Journal of International Law

Following an introduction, the main part of the article will review the law of extradition from Israel-a subject about which little is known outside this country. The discussion will focus on the decisions and practices of both the judiciary and the executive. The remainder of the article will consider special problems that have arisen in Israel as a country with an "open gate" immigration policy for the Jews of the world and a new unwillingness to hand over its own nationals for trial and sentence abroad.

I. Review Of Foreign Laws, Michigan Journal Of International Law

Michigan Journal of International Law

The selection of national law summaries which follows is designed to enable the reader to survey the spectrum of domestic laws governing jurisdiction and judicial assistance. The reader may also find the summaries to be a useful starting point for further research. While the summaries vary somewhat in scope and degree of specificity, the differences are attributable to a desire to provide reasonably authoritative-rather than speculative- synopses of the law.

Iii. Recent French Extradition Cases, Michigan Journal Of International Law

Michigan Journal of International Law

This section of the appendix contains the first published collection of recent French extradition cases dealing with the application of the political offense exception to terrorists. Because of the selective fashion in which French decisional law is reported, many French extradition cases are never reproduced in any French case reporter. The purpose of this appendix is to provide an English speaking audience with the substance of opinions which are otherwise nearly impossible to obtain. The editors hope that this collection will aid comparative research and contribute to an informed debate on the political offense exception.

Occupational Safety And Health Law In Sweden And The United States: Are There Lessons To Be Learned By Both Countries, Barbara Jo Fleischauer

UC Law SF International Law Review

The United States and Sweden are both highly industrialized nations whose workers are exposed to similar risks and substances. Thus, the legal problems surrounding worker protection from occupational hazards are similar. Traditions and cultural differences, however, have influenced the direction each country has taken in this area. In light of these differences, the author reviews some recent changes in Swedish occupational safety and health law and examines the important differences between the Swedish and United States approaches. She concludes that although neither country would benefit from the wholesale adoption of the other's program, each could effectively borrow ideas that proved …

Foreign Investment In Cable Television: The United States And Canada, Colin J. Coffey

UC Law SF International Law Review

Canadian ownership and control of United States cablevision systems has steadily increased over the past seven years. This has given rise to heated debate concerning the issue of such alien control. The argument to impose citizenship requirements upon cable ownership centers on present citizenship requirements on common carriers and broadcast licensees, and on the issue of trade reciprocity. Rejecting the reciprocity argument as artificial, the author believes that Congress should impose citizenship requirements on cable television ownership, and that these requirements should be based on the policies and rationale of the Communications Act of 1934, which details the true reasons …

Opportunities In Puerto Rico: Tax Planning Under New Section 936, Steven J. Cohen

UC Law SF International Law Review

No abstract provided.

The Extraterritorial Effect Of Federal Criminal Statutes: Offenses Directed At Members Of Congress, Mark Petersen

UC Law SF International Law Review

In a world of increased tension and open hostility toward the United States and its policies, an attack or assault on a member of Congress traveling abroad is not inconceivable. Section 351 of the United States Criminal Code prescribes penalties for offenses directed at members of Congress including assault, killing, kidnapping, and attempted conspiracies. Section 351, however, is silent as to a court's reach in asserting subject matter jurisdiction. This Note addresses the issue of whether the United States federal courts could obtain jurisdiction over a foreign group or individual who attacked or killed a Congressperson in a foreign country. …

People's Republic Of China's Foreign Enterprises Income Tax Law And Regulations, Anna M. Han

UC Law SF International Law Review

As part of the People's Republic of China's continued effort to strengthen and define its legal system, the Fifth National People's Congress promulgated the Income Tax Law Concerning Foreign Enterprises. This enactment reflected the Chinese Government's recognition that clear tax rules were needed which would assist tax planning by foreign investors. The Law and its accompanying Regulations were designed to fill major gaps in China's taxation system by reaching previously ignored major sources of income. This Article provides a general introduction to the various provisions of the Foreign Enterprise Tax Law and Regulations which remain unclear due to the newness …

United States Antidumping Laws And Chinese Exports To The United States, Clyde Stoltenberg

UC Law SF International Law Review

Less than five months after the United States and China signed an agreement to promote and expand trade an antidumping petition was filed against China. This was one of the first times China had been a party to litigation in the United States since Normalization of relations in 1979. In the future the antidumping issue may be one of the most significant barriers to the development of United States-China trade relations. This article examines the general framework of United States antidumping laws, the key issues which have emerged in proceedings and the antidumping cases decided or pending. It also examines …

The Constitutional Court Reviews The Early Dissolution Of The West German Parliament, Mary Lovik

UC Law SF International Law Review

The December 1982 dissolution of the Bundestag, in order to make way for new elections, was only the second time in the thirty-five year history of the Federal Republic that such an event occurred. The 1949 Bonn Constitution provides severely restrictive provisions regarding early dissolution. The Federal Constitutional Court, however, upheld the dissolution proceedings. This Article investigates the legal issues raised by the early dissolution, and the Constitutional Court's decision as to its constitutionality. It also discusses several proposals which have been made which would amend the Bonn Constitution to permit easier dissolution. The dissolution marked an important milestone in …

The Exclusionary Rule In Germany, Craig M. Bradley

Articles by Maurer Faculty

The exclusionary rule that the Supreme Court has fashioned to suppress evidence obtained unconstitutionally is directed at least in part toward deterring police conduct that violates constitutional norms. Since the inception of the rule, the value and efficacy of a prescript that excludes otherwise relevant and probative evidence in a factfinding proceeding has been a subject of heated debate. In this Article, Professor Bradley examines the rather different exclusionary rules used in Germany. He argues that a comparison of exclusionary rules in Germany and the United States suggests that a number of different policies of a criminal justice system could …

Western Scholarship On Chinese Law: Past Accomplishments And Present Challenges, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

Chinese law-making in recent years has been nothing less than remarkable and presents a new challenge for research today. The recent adoption of new codes, the revival of formal legal institutions, including courts and the bar, and the reinvigoration of legal education and research all signal the reappearance of an entire field of study.

Although a foundation for study was laid by some scholars in the 1960's, the field later declined, reflecting the low condition to which the Chinese legal system fell, both before and during the disastrous Cultural Revolution. Once again, however, study of the operation of the Chinese …

Empirical Research About Law: The German Picture With Comparisons And Observations, Robert A. Riegert

Penn State International Law Review (1982 - 2011)

While studying current legal developments in West Germany during the summer of 1979, the author became convinced that the most important development in German law in the past two decades was the movement toward empirical research about law. This research is often referred to by German jurists as fact research in law. During the intervening years, the author has been able to trace dome major developments of this movement.

The principal aim of this article is to furnish information to the American legal community about social-fact research in law resulting from the German experience. Discussion of Germany's experience is appropriate …

Investment And The Andean Pact: From Political Response To Legal Structures To Safe Harbors, Robert Carcano

Penn State International Law Review (1982 - 2011)

The Latin American experience clearly establishes that economic development involves profound social and political change. Despite modernization efforts, economuc benefits eluded Latin American leaders. This fact led to the widespread perception that a new international legal strucure had to be forged if the region's myriad social concerns were to be addressed. Regional economic integration was a necessary first step.

Integration enabled Latin American statesmen to address insurmountable national problems on a regional level. In the Latin American context, however, economic integration efforts became intertwined with the new nationalism. Despite this beginning, the structures that eventually arose formed a relationship which …

British Anti-Discrimination Law: An Introduction, Christopher Mccrudden

Penn State International Law Review (1982 - 2011)

The United Kingdom is a signatory of a number of international treaties protecting various aspects of human rights, including freedom from discrimination. Yet, there is no legislation in this country protecting a comprehensive list of human rights in the manner of the United States Bill of Rights, although there have been a number of unsuccessful atempts to enact such legislation since 1969. Moreover, prior to race relations legislation, there was no general rule, policy or principle in common law directly relevant to combating racial discrimination or incitement to racial hatred.

The inadequacies of the common law and statutes stimulated several …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

CIVIL JUDGMENT RECOGNITION AND THE INTEGRATION OF MULTIPLE STATE ASSOCIATIONS: CENTRAL AMERICA, THE UNITED STATES OF AMERICA, AND THE EUROPEAN ECONOMIC COMMUNITY

By Robert C. Casad

Lawrence: The Regents Press of Kansas, 1981. Pp. 258.$25.00.

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COMPARATIVE LAW YEARBOOK

VOL. 4, 1980

Edited by Dennis Campbell

The Hague/Boston/London: Martinus Nijhoff Publishers, 1981. Pp. 371.

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CONSTITUTION-MAKING: PRINCIPLES, PROCESS, PRACTICE

By Edward McWhinney

Toronto: University of Toronto Press, 1981.Pp. 231. $20.00.

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THE ENVIRONMENTAL LAW OF THE SEA

Edited by Douglas M.Johnston

Gland, Switzerland: International Union for Conservation of Nature and Natural Resources, 1981. Pp. 419.

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INTERNATIONAL BUSINESS: ENVIRONMENTS AND …

The Japanese Law In English: Some Thoughts On Scope And Method, Dan F. Henderson

Vanderbilt Journal of Transnational Law

Japanese law is a fledgling topic of comparative law in this country. The rapid growth of bilateral business and the integration of the United States and Japanese economies in recent years suggest the need for increased attention to this area. This Article first examines the prewar antecedents and the postwar developments of Japanese law in English in this country. It then reviews the present law school environment for the study of Japanese law as a comparative law subject. Finally, it briefly addresses three key issues basic to the development of this subject.

Power To Enforce Treaties In Australia -- The High Court Goes Centralist?, John M. Finnis

Journal Articles

At first glance, the decision of the High Court of Australia in Koowarta v Bjelke-Petersen profoundly affects the distribution of legislative power between the States and the Commonwealth of Australia. Perhaps that first impression should be somewhat qualified. But there seems no good reason to doubt what Wilson J (dissenting) said about its possible implications for the exercise of State legislative power.

A New Classification Of Law For A Foreign, Comparative, And International Research Law Library, Jan Stepan

Vanderbilt Journal of Transnational Law

The Swiss Institute of Comparative Law seated at Lausanne was established by the federal statute of October 6, 1978. The Institute is envisioned as a center for the "documentation of and research into comparative, foreign, and international law." According to the statute and the implementing decree of December 19, 1979, the Institute serves the following purposes:

(1) to supply federal agencies and the federal administration with material and studies that may be needed for decisions concerning legislation and international treaties; (2) to contribute towards international efforts at the harmonization and unification of law; (3) to provide information and expert opinions …

The Political Offense Exception As Applied In French Cases Dealing With The Extradition Of Terrorists, Thomas E. Carbonneau

Faculty Scholarship

There is no doubt that terrorism is a dangerous, costly and complex problem. Commentators have speculated extensively about its ideological character and other analysts have studied its sociological roots and psychological origins. Despite all this attention, there is a lack of consensus in the international community about whether terrorism is no more than a sensational form of criminality or a legitimate mode of political expression.

This article does not attempt to deal with all of the multifarious aspects of contemporary terrorism; its ambition is much more modest in scope, centering upon traditional legal mechanisms and doctrines that can be adapted …