Comparative and Foreign Law Commons^™

Radical Overhaul Of Hong Kong's Governance Regime: Likely Implications For Prosperity And Stability, Roda Mushkat

Notre Dame Journal of International & Comparative Law

Constitutional evolution is normally a steady process, with the prevailing equilibrium seldom punctuated. Sharp reversals periodically occur but they are uncommon, usually confined to low-income and lower middle-income countries. The introduction of a draconian national security law and its heavy-handed enforcement in the affluent Hong Kong capitalist enclave, serving as one of the world economy’s pivotal global metropolises, thus amounts to a historically unprecedented emasculation of a sound and well-thought-out governance architecture. The abrupt unraveling of a semi-democratic infrastructure, pulverizing of key components of a time-honored rule-of-law system, and erosion of international legal personality has been breathtaking and profoundly disconcerting. …

Rethinking Victim Participation In International Criminal Tribunals, Julia L. Jacovides

Notre Dame Journal of International & Comparative Law

No abstract provided.

China Informs A 21st Century Definition Of The Rule Of Law, Ashley Topel

Notre Dame Journal of International & Comparative Law

Politicians, lawyers, and academics alike have long been fascinated with the rule of law, but this fascination has never immunized them from the challenges of defining just what the rule of law is. Indeed, defining the rule of law by citing an example, such as the United Kingdom or the United States, remains easier than articulating why those nations have the rule of law and how other nations can advance the ideal within their own boundaries. Still, modern scholarship has led to the creation of three alternative theories of the rule of law–formalist, procedural, and substantive conceptions. A formalist theory …

Volume 13, Issue 2 - Full Issue, Journal Of International & Comparative Law, Notre Dame Law School

Notre Dame Journal of International & Comparative Law

No abstract provided.

More Than A "Drop Of Justice:" How Nazi-Looted Art Cases Promote "Transitional Justice" And Why These Cases Still Matter, Mark I. Labaton

Notre Dame Journal of International & Comparative Law

When it comes to Nazi looting, the past is not dead.Nor should it be. Even now more than three-quarters of a century after the Holocaust, Nazi-looted art cases still provide direct justice to victimized families while also advancing broader historical redress known as “transitional justice,” which since World War II has become a means to address mass atrocities through criminal trials, civil litigation, truth reconciliation commissions, memorials, and reparations.

The Long Term-Failings Of Internally Displaced Person Status: A Case Study Of The Êzidi People, Sarah A. Johns

Notre Dame Journal of International & Comparative Law

Never has the term limbo been so appropriately used in modern history than as applied to the current situation of the Êzidi internally displaced persons (IDPs). As Dante’s first circle of hell, limbo separates its residents from God, leaving them in a state of eternal suffering and sadness. This in-between place is saved for just individuals who did not receive Christ as required in Catholic theology and are now doomed to reside forever in a place of separation from God’s presence. Limbo is a state of punishment that seemingly freezes one’s ability to progress or enjoy future happiness.

Switzerland's "Summary Penalty Order" System: Should A Similar System Be Used For America's Minor Crimes?, Kirk Earl

Notre Dame Journal of International & Comparative Law

Jack Ford did not think he was committing a crime when his girlfriend let him spend the night with her at a house in Baltimore. However, what Ford did not know was that the owner of the house had not given permission for the couple to stay there. Ford was arrested and charged with burglary in the fourth degree, which is a misdemeanor in the state of Maryland. Ford’s attorney believed that Ford would have a strong case at trial because he did not know that he was not allowed in the house, so there was no intent to commit …

Present And Future Of Environmental Law In Cuba, Daimar Cánovas González

FIU Law Review

The environmental legal framework in Cuba is based on constitutional article 75 and Law 81, of July 11, 1997, on the environment, a framework law on the matter, with a series of complementary provisions with the rank of Decree Law or Ministerial Resolution. The adoption of the new constitutional text in 2019 is followed by the updating of all environmental legislation that requires a new framework law, which fills the gaps in the current one and leads to more effective environmental management. The paper addresses some of the areas in which significant changes have occurred or should occur. In particular, …

Association For The Study Of The Cuban Economy (Asce) Thirty-Second Annual Conference: Introduction, Karla Rivas

FIU Law Review

No abstract provided.

Contemporary Crises In Cuba: Economic, Political, And Social, Silvia Pedraza, Carlos Romero

FIU Law Review

In this paper my co-author and I will present the various crises that are taking place in Cuba at present: economic, political, and cultural. We rely on published data, such as the GDP, as well as materials from in-depth interviews and participant observation.

Religious Liberty For All? A Religious Right To Abortion, Caroline Mala Corbin

Articles

One of the most notable trends in recent Supreme Court jurisprudence is the expansion of religious liberty rights. The right to practice one's faith is a core feature of a democracy, but the Supreme Court has privileged that right over other equally critical ones, most notably the right to equal treatment. Thus, for example, the Court has held that for-profit companies have a religious right to exclude contraception from their health insurance plans and that nonprofit charities have a religious right to refuse to place foster children with same-sex couples. In these and similar cases, the religious beliefs aligned with …

Developing American Wine Law – Lessons From European Wine Regulation In The Face Of Climate Change And Growing Demand, Kyle Amendt Shimomura

Emory International Law Review

No abstract provided.

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

The Politics Of Justice: Analyzing The Politicization Of Transitional Justice Processes, Erin Bloom, Lisa K. Dicker

Faculty Publications

(Excerpt)

In the United States, the argument for using transitional justice as a mechanism for reckoning with the country's racial injustices—past and present—has gained a broader platform since 2020. While the call for truth, redress, and reform is not new, the mass movement towards it has gained momentum at both the local and national level. At the national level, a House Committee revived a bill first proposed in 1989 to create a commission to study reparations for slavery in the United States and advanced it; though the House has not taken H.R. 40 up for consideration. Representative Sheila Jackson Lee …

Apology As An Intellectual Property Remedy In China: A Preliminary Examination Of American Litigation Experiences, Robert H. Hu

Faculty Articles

Seeking and receiving an apology from the wrongdoer is a ubiquitous social phenomenon in Chinese culture and society. In recent years, litigation and apologies appear to be natural elements of contemporary life in China. Apologies as a legal remedy in Chinese laws and regulations have become prevalent for nearly four decades. In particular, in intellectual property law, the last thirty years have witnessed an explosion of apology cases. In such litigation, plaintiffs seek (and sometimes obtain) apologies from the defendants as a statutory remedy besides injunction and damages. American businesses operating in China increasingly take to the Chinese courts to …

Unraveling The International Law Of Colonialism: Lessons From Australia And The United States, Robert J. Miller, Harry Hobbs

Michigan Journal of Race and Law

In the 1823 decision of Johnson v. M’Intosh, Chief Justice John Marshall formulated the international law of colonialism. Known as the Doctrine of Discovery, Marshall’s opinion drew on the practices of European nations during the Age of Exploration to legitimize European acquisition of territory owned and occupied by Indigenous peoples. Two centuries later, Johnson—and the international law of colonialism—remains good law throughout the world. In this Article we examine how the Doctrine of Discovery was adapted and applied in Australia and the United States. As Indigenous peoples continue to press for a re-examination of their relationships with governments, …

Reclaiming Feudalism For The Technological Era, Shelly Kreiczer-Levy

Cardozo Arts & Entertainment Law Journal

The article argues that traditional personal property law fails to adequately address the complexities of AI-capable assets, such as robots, which require a new framework to balance manufacturer control with user rights. It proposes two models—the connection model and the competition model—to regulate these relationships, emphasizing the need for collaboration, data ownership, and consumer protection in the evolving landscape of technological ownership.

Blockchain, The Superhero That The Healthcare Industry Needs, Victor Wang

Cardozo Arts & Entertainment Law Journal

The note argues that blockchain technology holds significant potential for transforming the healthcare industry by enhancing data security and efficiency. However, its integration faces legal challenges due to conflicts with existing healthcare laws, particularly the Health Insurance Portability and Accountability Act (HIPAA) and the HITECH Act. The note contends that blockchain's decentralized and immutable nature violates key HIPAA requirements, such as data disposal and accountability standards. It advocates for updating these laws to accommodate blockchain technology and ensure compliance, emphasizing the need for legal frameworks to evolve alongside technological advancements.

Trademarks And Censorship In The Time Of Covid-19, Xuan-Thao Nguyen

Cardozo Arts & Entertainment Law Journal

During the devastating year of 2020, China quickly conquered the novel coronavirus and roared back economically while the United States faced staggering deaths and economic losses. But underneath the divergent experience of the two countries is an untold story of trademark and censorship in the time of COVID-19. This Article observes that while the United States Supreme Court has lifted the ban on trademark registrations for unconstitutional viewpoint discrimination, opening the door for offensive COVID-19 trademark applications, China has transformed trademark law into the law for censorship as Chinese authorities press forward to achieve twin victories over the coronavirus and …

Three Megatrends In The International Intellectual Property Regime, Peter K. Yu

Cardozo Arts & Entertainment Law Journal

The international intellectual property (IP) regime has undergone significant transformation over the past century, shaped by three key megatrends: the rise of emerging countries, the increasing complexity of the regime, and spatial transformation driven by new technologies. These trends have reshaped the regime's standards, policies, and challenges, with profound implications for global economic and social welfare. The article critiques the regime's historical bias toward developed nations and its overemphasis on trade interests, advocating for a balanced approach that integrates public welfare and human rights considerations. It concludes that the regime's growing complexity necessitates new institutional frameworks and vocabularies to address …

Impossibility Of Emergent Works’ Protection In U.S. And Eu Copyright Law, Mateusz Blaszczyk

Scholarly Works

Protection of emergent works is impossible. Without an author, there is no expression of ideas which can be original, and thus no copyrightable work. Indeed, the whole system of copyright law, its conceptual building blocks of idea-expression dichotomy, originality, authorship, and the concept of a protectable work operate in the notation of human creativity. Emergent works fall outside of copyright’s positive ontology, being akin to ideas, facts, or subject-matter predicated by technical considerations, rather than authorial creativity. In other words, they do not exist as things in law and thus cannot as such be owned. Rather, like any idea, they …

Achieving A (Copy)Right To Repair For The Eu’S Green Economy, Anthony D. Rosborough, Leanne Wiseman, Taina Pihlajarinne

Articles, Book Chapters, & Popular Press

• The Right to Repair is a global movement in favour of rebalancing the relationship between manufacturers and end users of products and devices. As part of the European Union (EU) Green Deal and the Circular Economy Action Plan, EU legislators have made the Right to Repair a key policy aim. To date, however, the EU’s Right to Repair policy focus has been predominantly consumer law–oriented.

• This article sheds light on another key dimension of the Right to Repair—IP (and principally copyright law). It canvasses the ways in which copyright can inhibit repair activities, including curtailing access to repair information and …

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The Values-Based Trade Agenda, Fernanda Giorgia Nicola Dr., Michelle Egan

Scholarly Articles in Law Reviews & Journals

With the increasing trade tensions between the United States and China, pressures created by Brexit, and the COVID-19 pandemic, most trade scholars have focused on rising protectionism exhibited through defensive strategies such as tariffs and export controls. However, this focus ignores the fundamental shift in international trade goals of the United States and the European Union towards a values-based trade agenda.

Instead of merely focusing on free trade based on efficiency and market access, trade regulators on both sides of the Atlantic have independently pursued measures designed to address environmental sustainability and social equity. These policies resonate with their domestic …

Just Transition Litigation In Latin America: An Initial Categorization Of Climate Litigation Cases Amid The Energy Transition, Maria Antonia Tigre, Lorena Zenteno, Marlies Hesselman, Natalia Urzola, Pedro Cisterna-Gaete, Riccardo Luporini

Sabin Center for Climate Change Law

Just transition litigation is a novel field representing a sub-set of climate change litigation cases that is under-researched and studied. The report provides a novel comparative analysis of legal developments found in 20 just transition litigation cases in four Latin American countries and questions whether initiatives for achieving energy transformation in the region may have erred in failing to consider key just transition principles or dimensions, leading applicants to bring legal cases to claim their rights or demand more just solutions. The cases found – limited to the energy sector – not only question decarbonization policies or projects (in typical …

Trademarks And Censorship In The Time Of Covid-19, Xuan-Thao Nguyen

Articles

During the devastating year of 2020, China quickly conquered the novel coronavirus and roared back economically while the United States faced staggering deaths and economic losses. But underneath the divergent experience of the two countries is an untold story of trademark and censorship in the time of COVID-19. This Article observes that while the United States Supreme Court has lifted the ban on trademark registrations for unconstitutional viewpoint discrimination, opening the door for offensive COVID-19 trademark applications, China has transformed trademark law into the law for censorship as Chinese authorities press forward to achieve twin victories over the coronavirus and …

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Articles

Drawing cases from two related areas of law-fingerprint and DNA (deoxyribonucleic acid) data-this Article proposes a modified framework, built on the Balkin-Levinson emphasis on national politics: First, national politics understood as partisan rivalry cannot account for what I call doctrinal lock-in in this Article, where I will demonstrate that in different stages of American politics-the Lochner era, the New Deal era, and Civil Rights era-courts across the nation ruled predominantly in favor of public data collectors-state and federal law enforcement in fingerprint cases. From the 1990s, when DNA data became hot targets of law enforcement, the United States Supreme Court …

Manufacturing Innovation, Xuan-Thao Nguyen

Articles

Using intellectual property assets as the proxy for innovation measures, this paper provides a comprehensive analysis of the legal and policy strategies that form the foundation for China's new role as the global manufacturer of innovation. Manufacturing innovation is evident through China's multi-prong approach regarding intellectual property production and maximization. Significantly, among many other policies that target innovation, China encourages the production of innovation by accepting patents and trademarks as collateral assets for financing. Entrepreneurs can quickly obtain loans against their portfolios of patents and trademarks. China also requires enterprises seeking to undergo an initial public offering (IPO) on the …