Comparative and Foreign Law Commons^™

Pandangan John Finnis Mengenai Hukum Yang Tidak Adil, Petrus Ckl Bello

Jurnal Hukum & Pembangunan

Contemporary natural law thinker John Finnis in his book Natural Law and Natural Right published in 1980 differentiates between legal obligations and moral obligations. According to Finnis, legal obligations cannot change, while moral obligations can change, in the sense that when it comes to unjust laws, only the moral obligation to obey the unjust law is extinguished, while the legal obligation to obey the unjust law remains and is binding. For Finnis, natural law theory does not focus on the view that the law is wrong or against moral principles that cannot be called law (lex injusta non est lex), …

Efektivitas Pelaksanaan Pemberian Pendidikan Formal Bagi Anak-Anak Pengungsi Luar Negeri Di Kota Batam, Rina Shahriyani Shahrullah, Heru Susetyo, Lu Sudirman, Rendi Sahputra

Jurnal Hukum & Pembangunan

The entire responsibility for all children in Indonesia lies with the government, and it extends to all children in Indonesia, not only those who are Indonesian nationals but also includes children who are refugees from foreign countries. One of the fundamental rights regulated by the laws and the Convention on the Rights of the Child ratified by Indonesia is the right to receive appropriate education (formal, non-formal, and informal education). This research aims to analyze the implementation of formal education fulfillment for refugee children in Batam City, especially those accommodated at Hotel Kolekta. Therefore, the research questions are as follows: …

Pelestarian Ekosistem: Urgensi Pengaturan Sanksi Pemulihan Bagi Spesies Dalam Kejahatan Terhadap Satwa Liar, Britha Mahanani Dian Utami

Jurnal Hukum & Pembangunan

Law Number 5 of 1990 concerning the Conservation of Natural Resources and Ecosystems has never been revised while the development of science and technology has influenced a paradigm shift in the protection of biodiversity. The proposal of Commission IV of the House of Representatives to propose a revision of Law Number 5 of 1990 was approved in the Plenary Session as a 2021 Priority Bill. However, in the draft Biodiversity Conservation Bill, recovery is still oriented towards the recovery of the area, while not yet regulating recovery for species that are victims of crime. This paper argues that the regulation …

Strategi Burden & Salvage: Formula Yuridik Untuk Terapi Doktrinal, Phobia Pajak Karbon, Herman Bakir

Jurnal Hukum & Pembangunan

This text introduces the burden & salvage doctrine, a formula providing an alternative path to develop a solid lex specialis within the realm of Pigouvian tax. It promotes a type of “juridical therapy” for the Indonesian government to overcome their excessive “fear” of carbon taxes, which had led them to surrender and revoke the program until the end of President Joko Widodo’s tenure Method: Data was gathered online using the World Wide Web’s search features to their fullest potential. Findings: Carbon tax should ideally be established by the legislation of the lex specialis type, characterized by the burden and salvage …

Kepastian Hukum Penyelesaian Sengketa Dengan Klausula Arbitrase Di Mahkamah Agung, Devianty Fitri, Almaududi Almaududi

Jurnal Hukum & Pembangunan

Settling disputes in court can be a time-consuming and exhausting process. Therefore, the availability of arbitration as an Alternative Dispute Resolution (ADR) is one of the efforts to achieve faster solutions and dispute resolutions. However, in some cases in the Supreme Court, there are disputes that contain arbitration clauses in the agreement, yet they are still submitted to court and decided by the court. This research aims to examine the disappearing in-depth study of legal certainty in dispute resolution with arbitration clauses by analyzing several verdicts. The method used in this study is normative juridical with a legislative and case …

Queer Liberation Under International Law, Cardozo Journal Of Equal Rights And Social Justice, Cardozo International & Comparative Law Review, Cardozo Outlaw

2023 Event Invitations

This symposium will equip attendees with an understanding of how global movements, including activists, lawyers, scholars and organizations, navigate and employ international law in pursuit of queer liberation.

Adopting an intersectional feminist framework, this symposium is an acclamation for queer justice everywhere. Introduced by Dean Melanie Leslie, this symposium will explore how international law may subjugate or protect queer populations, how domestic efforts interact with international law and how constitutional laws and international law must evolve for exhaustive social justice.

Always A Suspect: Law Enforcement’S Use Of Location History Data In Criminal Investigations, Aaron A. Bengart

Cardozo International & Comparative Law Review (CICLR) Blog

Imagine taking your dog on a walk around the neighborhood or visiting an ill parent in a nursing home and suddenly being considered a prime suspect in a serious criminal investigation. This has happened to a multitude of people over the past few years as law enforcement has increasingly used Location History data to identify perpetrators of criminal activity in every US state. For example, Zachary McCoy found himself as a suspect in a local home invasion simply for riding his bike past the house at issue multiple times on the day of the invasion. Consequently, Mr. McCoy felt obligated …

Deterrence, Punishment, Or Retribution: American Criminal Prosecution Of Sayfullo Saipov And Intern, Madeline Epstein

Cardozo International & Comparative Law Review (CICLR) Blog

On Halloween in 2017, Sayfullo Saipov drove a large truck into dozens of people on the cycling and pedestrian pathway near the West Side Highway in Manhattan, causing eight deaths and numerous injuries. Saipov was allegedly acting on behalf of the Islamic State (“ISIS”), and the Southern District of New York charged him with twenty-eight counts, including murder and attempted murder in aid of racketeering and provision of material support to a designated foreign terrorist organization, among other included charges. Saipov, a citizen of Uzbekistan, was found guilty by the American jury on all counts during the guilt phase of …

Facial Recognition Law: Why Should We Care?, Xueyang Peng

Cardozo International & Comparative Law Review (CICLR) Blog

What if you are a lawyer and you would like to spend an evening enjoying your favorite artist’s concert at the Radio City Music Hall? Or a Knicks game at Madison Square Garden? The first thing you should check is not the ticket price, but rather whether you, or your law firm, has made the MSG blacklist. Even though for years, the owner of MSG has been using the blacklist to exclude its enemies (and their associates) from setting foot in any MSG-owned venue, the facial recognition technology (“FRT”) just brought this practice to a new level.

This post was …

Decolonizing Legal Influence: China's Role In The Changing Landscape Of The Ethiopian Legal Profession, 2000-2018, Mekonnen Firew Ayano

Journal Articles

Over the last two decades, the legal profession in Ethiopia has changed fundamentally. The government has increased the number of law schools from one in 1993 to more than three dozen by 2021. It has introduced strict licensure rules to formalize and regulate legal services and, more recently, in 2022, it has proclaimed the creation of law firms and an independent bar association. The market for legal services has expanded, allowing lawyers to reach out to clients in the country’s peripheries and move onward to attract global clients. These changes are inextricably tied to global currents that have diffused Anglo-American …

Privacy Enforcement In Action: Eu Regulators And Us Attorneys General Take On Big Tech, Benjamin Wade

Cardozo International & Comparative Law Review (CICLR) Blog

In the twenty first century, it is impossible to avoid using internet capable devices and programs in our everyday lives. As a result, significant amounts of personal data have become more accessible than ever before, putting the privacy of countless people at risk. To protect user privacy, companies providing services must limit the accessibility of personal data and comply with existing data privacy and protection laws. If they fail to do so, regulators and law enforcement agencies must ensure proper compliance.

This post was originally published on the Cardozo International & Comparative Law Review on March 22, 2023. The original …

Duty-Free Shopping: Comparing Tax-Free Travel Restrictions Of The Eu And The United States, Sarah Lerche

Cardozo International & Comparative Law Review (CICLR) Blog

If you have been to an airport, you have likely come across the heavily stocked, halogen lit, mini shopping malls just across from your departing gate. Affixed with the large “Duty-Free” logo, these tempting variety stores lure travelers in with their notorious “tax-free" goods, that “typically offer a distinct assortment of luxury goods-like alcohol, jewelry, and beauty products-to outbound international travelers.” But the question looms, whether these duty-free shops are actually saving customers money, and how countries restrict such purchases throughout international travel. This piece will explore those two questions by comparing the European Union (EU) and the United States …

Damage To Reputation: A Comparative Analysis Of Pecuniary Compensation For Non-Pecuniary Harm, Frank S. Giaoui

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

After Pillar One, Reuven S. Avi-Yonah

Law & Economics Working Papers

Pillar One is unlikely to succeed for three reasons. First, it requires an MTC to be implemented because Amount A requires overriding Articles 5 (Permanent Establishment, PE), 7 (Business Profits) and 9 (Associated Enterprises) of every tax treaty to abolish the PE and Arm’s Length Principle (ALP) limits enshrined therein. But negotiating an MTC is hard, especially when over 100 countries are involved and there are fundamental disagreements among them.

Second, because Pillar One (despite its October 2021 expansion) is still aimed primarily at taxing the US digital giants (Big Tech), it is hard to envisage it being implemented without …

To Drink Or Not To Drink? Canada’S New Guidelines For Alcohol Consumption, Lauren Cutler

Cardozo International & Comparative Law Review (CICLR) Blog

On January 17, 2023, Canadian health officials from the Centre on Substance Abuse and Addiction released new guidelines for alcohol consumption, replacing a previous set from over ten years ago. These guidelines are reflective of “growing evidence, after decades of sometimes conflicting research, that even small amounts of alcohol can have serious health consequences.” In the technical summary, the Centre states that the costs associated with alcohol use in Canada in 2017 were a whopping $16.6 billion. $5.5 billion of that sum was attributable to healthcare costs.

This post was originally published on the Cardozo International & Comparative Law Review …

Should Canada’S Expansion Of Its Medical Assistance In Dying Program Concern Americans?, Tova Wolkenstein

Cardozo International & Comparative Law Review (CICLR) Blog

After suffering from severe chronic back pain and fearing losing his home, 54-year-old Canadian Amir Farsoud applied to Canada’s Medical Assistance in Dying program (MAID) to alleviate the stresses of his life. Farsoud is just one instance of an individual choosing to die with a physician’s help under the new criteria of MAID. As Canada is America’s “neighbor to the North,” the expansion of physician-assisted suicide there might be a canary in the coal mine as to what will happen in the United States, unless there is an active pushback to stop it.

This post was originally published on the …

Force Majeure & Covid-19: A Clause Changed?, Claudia Petcu

DePaul Business & Commercial Law Journal

No abstract provided.

Arbitration: Who Does It Better?, Emma Pearson

Cardozo International & Comparative Law Review (CICLR) Blog

Arbitration is a form of dispute resolution used as an alternative to litigation. It has become an increasingly common method of dispute resolution in the United States, with over 9,000 cases and 15 billion dollars going to arbitration in 2021. Arbitration is seen as a beneficial alternative to litigation in the United States for a number of reasons. It takes much less time than traditional litigation so parties can expect to have a resolution to their claim much faster. Additionally, it can be much more cost effective than litigation because it does not have the same extensive discovery process as …

From The Editors In Chief, Kathleen Claussen, Sergio Puig, Michael Waibel

Articles

No abstract provided.

On The Nexus Between The Strength Of The Separation Of Powers And The Power Of The Judiciary, Rivka Weill

William & Mary Bill of Rights Journal

This Article makes four novel arguments: (1) There is an inverse relationship between the strength of a separation of powers structure and the strength of the judiciary. In a strong separation of powers structure, one should expect a weaker judiciary, and vice versa. This nexus exists empirically, and is supported on normative and strategic grounds. (2) This nexus is manifested through a web of common law doctrines that developed to support a given separation of powers structure and shape the judicial oversight of the political branches. This Article identifies a list of common law doctrines—including standing, justiciability, deference, and judicial …

Constitutional Equality And Executive Action: A Comparative Perspective To The Comparator Problem, Kenny Chng

Research Collection Yong Pung How School Of Law

A general right to equality is a common feature of written constitutions around the world. Interesting questions arise when one seeks to apply such rights to discrete executive acts. The subject of such acts has necessarily been singled out from a multitude of possibilities for the purposes of the act. To determine whether a differentiation has occurred such that like cases have not been treated alike, to what or whom should this subject be compared? The question of how one selects the proper comparator becomes especially significant when one notes that whether the equal protection guarantee is triggered at all …

Turkmenistan's Ban On Beauty Services, Samantha Lauring

Cardozo International & Comparative Law Review (CICLR) Blog

In an act that further restricts the rights of women in Turkmenistan, the Turkmen government has imposed a ban on beauty services and limitations on what women can wear. The ban prohibits women from receiving beauty services from salons, including eyelash and nail extensions, tattoos, injections, and hair bleaching. “Sexy” outfits, tight-fitting clothes, and Western-inspired garments are also prohibited under this new mandate.

This post was originally published on the Cardozo International & Comparative Law Review on February 27, 2023. The original post can be accessed via the Archived Link button above.

Artificial Vs. Non-Artificial Intelligence: What Does Chatgpt Mean For Labor And Employment?, Ahren Lahvis

Cardozo International & Comparative Law Review (CICLR) Blog

ChatGPT has set the world ablaze. The publicly available and free-to-use chatbot is an application programming interface (API) that generates responses to language requests through artificial intelligence (AI), and processes millions of such requests per day. Released for public access in November 2022, ChatGPT can, upon request, produce jokes, TV episodes, music, and computer code. Students now use it to write papers, businesses use it to create promotional materials, and lawyers use it to draft legal briefs.

This post was originally published on the Cardozo International & Comparative Law Review on February 14, 2023. The original post can be accessed …

The Evolution Of Chapter 11: How Corporate Restructuring Has Evolved And Its Important Role In The Recovery Of A Struggling Economy, Eduardo Cervantes

DePaul Business & Commercial Law Journal

No abstract provided.

Covid-19 Vs. Constitution; Limited Government's Unlimited Response, John A. Losurdo

DePaul Business & Commercial Law Journal

No abstract provided.

The "No License, No Chips" Policy: When A Refusal To Deal Becomes Reasonable, Sheng Tong

DePaul Business & Commercial Law Journal

No abstract provided.

The Dark Triad: Private Benefits Of Control, Voting Caps And The Mandatory Takeover Rule, Jorge Brito Pereira

DePaul Business & Commercial Law Journal

No abstract provided.

Lost In The Woods, Moshe Gelberman

Cardozo International & Comparative Law Review (CICLR) Blog

In November of 2022, five U.S. Senators sent letters to top law firms warning them that continued cooperation in environmental-social-governance (ESG) agreements, by the firms or by their clients, would be subject to heightened scrutiny under U.S. antitrust laws. By failing to issue similar antitrust guidelines for ESG agreements, federal policy lags behind the international community, disservices the competitive market, and hurts ESG goals.

This post was originally published on the Cardozo International & Comparative Law Review on February 6, 2023. The original post can be accessed via the Archived Link button above.

Repeal Of The Recja And Transfer Of Countries To The Refja, Adeline Chong

Research Collection Yong Pung How School Of Law

Singapore’s Reciprocal Enforcement of Commonwealth Judgments Act 1921 (‘RECJA’) is based on the UK Administration of Justice Act 1920 and its Reciprocal Enforcement of Foreign Judgments Act 1959 (‘REFJA’) is based on the UK Foreign Judgments (Reciprocal Enforcement) Act 1933. In 2019, the government amended the REFJA in significant ways (previously detailed here), expanding its scope to include the registration of judgments from non-superior courts of gazetted countries, judicial settlements, non-money judgments and interlocutory judgments. At the same time, the RECJA was repealed from a date to be determined by the government.

Colorblind Nationalism And The Limits Of Citizenship, Ming Hsu Chen

Cardozo Law Review

Policymakers and lawyers posit formal citizenship as the key to inclusion. Rather than presume that formal citizenship will necessarily promote equality, this Article examines the relationship between citizenship, racial equality, and nationalism. It asks: What role does formal citizenship play in excluding noncitizens and Asian, Latinx, and Muslim citizens racialized as foreigners? What effects does it have on the meaning of being American as a non-White citizen? The Article argues that commitments to colorblind equality and democratic self-governance of the nation stand in contradiction to aspirations to protect all persons within the nation. Consequently, individual rights designed to remedy racial …