Comparative and Foreign Law Commons^™

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Journal Articles and Book Chapters

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash.

In the years since Herring was decided, courts have allowed evidence laundering in a …

Plea Bargaining And Disclosure In Germany And The United States: Comparative Lessons, Jenia I. Turner

Faculty Journal Articles and Book Chapters

This article analyzes recent trends in plea bargaining and disclosure of evidence in Germany and the United States. Over the last two decades, a number of U.S. jurisdictions have adopted rules requiring broader and earlier discovery in criminal cases. This development reflects a growing consensus that, in a system that resolves most of its cases through guilty pleas, early and extensive disclosure is necessary to ensure fair and informed outcomes.

The introduction of broader discovery in criminal cases in the United States aligns our rules more closely with German rules on access to the investigative file. At the same time, …

Between Legitimacy And Control: Challenges And Recusals Of Arbitrators And Judges In International Courts And Tribunals, Chiara Giorgetti

Law Faculty Publications

Challenges of judges and arbitrators in international courts and tribunals is a vastly understudied subject. To correct this imbalance, this Article makes three novel contributions. First, and for the first time, it details and compares challenge procedures across a variety of international courts and tribunals, including both permanent and ad hoc institutions. Second, it provides unique data on challenges and provides a detailed analysis of their outcomes. Third, it makes two concrete recommendations that should be adopted as baseline requirements to improve and harmonize existing challenge procedures: (1) it proposes that an external or semi-external institution take decisions on challenges, …

Why Foreign Policy Principles Persist: Understanding The Reinterpretations Of Japan’S Article 9 And Switzerland’S Neutrality, Yuki Numata

Pomona Senior Theses

This study examines why Japan and Switzerland have chosen to keep the vocabulary of Article 9 and neutrality, respectively, and to reinterpret their definitions to suit their needs (policy reinterpretation), instead of simply abandoning the original policy and replacing it with a new, more suitably worded policy that clarifies the changing policy position of the government (policy abandonment). By analyzing the legal history of the overseas capabilities of the Japanese Self-Defense Forces and the Swiss Armed Forces, as well as the actions and influences of the government, political parties, and the public, this study finds the following trends. First, the …

Disciplining The Right Of Publicity's Nebulous First Amendment Defense With Teachings From Trademark Law, Wee Jin Yeo

Cardozo Arts & Entertainment Law Journal

Academic commentators, practitioners and students alike have written a flurry of articles on the First Amendment defense in right of publicity law, as courts cannot seem to agree on the appropriate balancing test that should be used to weigh celebrities 'publicity rights against the public's rights to use celebrity personas as communicative tools. Various tests have been proposed as the panacea, but are ultimately unsatisfactory, due to inadequacies that prevent them from striking a normatively desirable balance.

This Article suggests that the core normative justification behind the right of publicity is the prevention of unjust enrichment. Thus, following recent developments …

The Right To Be Forgotten: Comparing U.S. And European Approaches, Samuel W. Royston

St. Mary's Law Journal

This Article compares the European and United States stances regarding the right to be forgotten. Within that context, this Article explores the implications of technological advances on constitutional rights, specifically the intersection of the right to free speech and the right to privacy, commonly referred to as the "right to be forgotten" paradox. In the United States, the trend is to favor free speech, while Europe places an emphasis on human rights. Each approach is analyzed based on supporting case law. The consequences of each approach on society, both long- and short-term, are also discussed. This Article argues that a …

Dirty Laws: A Critique Of The Audiovisual Media Services Regulations 2014 And Section 63 Of The Criminal Justice And Immigration Act 2008, Daniel Haley

Cardozo Journal of Equal Rights & Social Justice

The United Kingdom's recently enacted anti-pornography laws, the Audiovisual Media Services Regulations 2014 and section 63 of the Criminal Justice and Immigration Act 2008, are inconsistent with the European Convention on Human Rights, United Kingdom case law, and United Kingdom public policy. The Audiovisual Media Services Regulations 2014, which bans the sale of a wide array of domestically produced pornography, and the Criminal Justice and Immigration Act 2008, which criminalizes the possession of "extreme pornography, " are among the most restrictive anti-pornography laws in the democratic world. These laws were passed in response to the rise of the Internet, which …

Panel Ii: Fleeing Violence From The Middle East And North Africa, Alice Farmer, Zaid Hydari, Edwin Rekosh, Thomas Streinz

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Decentering Human Rights From The International Order Of States: The Alignment And Interaction Of Transnational Policy Channels, Radu G. Mares

Indiana Journal of Global Legal Studies

This article accounts for recent developments in corporate social responsibility, international trade and investment law, international human rights law, development aid, and the laws of home states reaching extraterritorially in order to advance a regulatory perspective on commerce and human rights. While these developments are remarkable, the analysis documents the prevalence of softer strategies and a corresponding scarcity of coercive legalization strategies. The question, then, is how to reason about these recent developments and their genuine potential for human rights protection. The article proposes two elements-a root-cause orientation and the interaction of policy channels-as indispensable for a regulatory and systemic …

The Race To Safety: How Private Lawmaking And Voluntary-Standard Adoption Can Inspire A Global Regime That Strengthens And Harmonizes Product Safety Standards, Alexandra Muir

Indiana Journal of Global Legal Studies

Today's economy is dominated by global actors. Over the past few decades, transnational corporations have increased in number and importance while domestic corporations have turned to outsourcing to cut costs and increase efficiency. The globalized economy has caused a breakdown in both physical and legal boundaries, as products in international commerce move from one jurisdiction to another, often adhering to safety standards of an entirely different jurisdiction than the one in which they are sold. This breakdown raises concerns about product safety and illustrates the importance of creating a consistent products liability regime for the international market. At the same …

A Comparison Between Shale Gas In China And Unconventional Fuel Development In The United States: Water, Environmental Protection, And Sustainable Development, Paolo D. Farah, Riccardo Tremolada

Brooklyn Journal of International Law

China is believed to have the world's largest exploitable reserves of shale gas, although several legal, regulatory, environmental, and investment-related issues will likely restrain its exploitation. China's capacity to face these hurdles successfully and produce commercial shale gas will have a crucial impact on the regional gas market and on China’s energy mix, as Beijing strives to decrease reliance on imported oil and coal, and, at the same time, tries to meet growing energy demand and maintain a certain level of resource autonomy. The development of the unconventional natural gas extractive industry will also provide China with further negotiating power …

Customary International Law: A Reconceptualization, Roozbeh (Rudy) B. Baker

Brooklyn Journal of International Law

The current state of international law is one of deep confusion over the role of state practice and opinio juris within the customary element. The debate between adherents of “modern custom” versus those of “traditional custom” has resulted in deep uncertainty and confusion. New theories of customary international law have proved inadequate in clarifying the current state of the field. Confusions over the meanings and relationships between state practice and opinio juris aside, current approaches are all also flawed due to a heavily state-centric bias that fails to take into account the very real affects that norm-generating transnational actors have …

Fashion Forward: The Need For A Proactive Approach To The Counterfeit Epidemic, Casey Tripoli

Brooklyn Journal of International Law

In the last two decades, the overall activity of the counterfeit market has expanded and risen 10,000 percent. This dramatic shift corresponds to growth of the Internet, which has unified the fascination of obtaining cheap, illegitimate goods with the efficiency of a mouse click. With the expected continued inflation of the counterfeit market comes a host of new concerns, namely, how to determine who is responsible for the distribution of these knockoffs, and who should be ordained to limit them in the marketplace. In both the United States and the European Union, however, outdated laws produce a mélange of inadequate …

Treating The New European Disease Of Consumer Debt In A Post-Communist State: The Groundbreaking New Russian Personal Insolvency Law, Jason J. Kilborn

Brooklyn Journal of International Law

This article examines the tumultuous transition from restrictive Communism to the debt-fueled consumer economy of modern Russia. In particular, it surveys Russia’s legal response to severe debt distress, situating it in the context of nearly one thousand years of historical development. Effective 1 October 2015, Russia finally joined most of its European neighbors in adopting a personal bankruptcy law, with characteristics that reflect both evolving international best practices and a series of lessons not learned. This article offers the first detailed exposition in English of the two steps forward represented by this new law, as well as an evaluation of …

The Phase-Out And Sunset Of Travel Restrictions In The International Health Regulations, Sarah R. Goldfarb

Brooklyn Journal of International Law

Whether and to what extent travel restriction should be implemented during international infectious disease epidemics became a controversial issue, most recently, during the 2014 Ebola outbreak. The primary authority on the manner in which to respond to such epidemics is the International Health Regulations (IHR). The IHR is a treaty, established by the World Health Organization (WHO), which governs and coordinates international responses to international infectious disease epidemics. Despite the WHO's strong advisement to the contrary, many countries who were signatories to the IHR implemented travel bans and other types of travel restrictions to prevent the transmission of the disease …

The Need For An International Convention On Data Privacy: Taking A Cue From The Cisg, Morgan Corley

Brooklyn Journal of International Law

In light of the invalidation of the U.S.-EU Safe Harbor, along with the increase in sales of personal data as a commodity, data privacy has become a major concern amongst different nations. The lack of harmonization of data-privacy laws around the world continues to pose obstacles to the free flow of data across national borders. The free flow of data is, nonetheless, essential the international economy. As a result, nations continue to work together to try to create mechanisms by which data can be transferred across borders in a secure manner. This Note examines the current state of data-privacy law …

Taking Constitutional Identities Away From The Courts, Pietro Faraguna

Brooklyn Journal of International Law

In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …

Thailand's Ban On Commercial Surrogacy: Why Thailand Should Regulate, Not Attempt To Eradicate, Allison L. Zimmerman

Brooklyn Journal of International Law

International commercial surrogacy is when a person or couple from one country hires a surrogate in a different country. In recent years, this form of reproductive tourism has been a booming industry in Thailand due to the lack of meaningful regulation, relatively low cost, and unavailability in other countries. After a string of scandals involving Thai surrogacy arrangements arose, however, the Thai government enacted the Protection for Children Born Through Assisted Reproductive Technologies Act (the “ART Act”), prohibiting Thai commercial surrogacy from serving foreign clients, and only allowing Thai heterosexual couples to make use of surrogacy arrangements. As a result, …

A Golden Opportunity: Supporting Up-And-Coming U.S. Luxury Designers Through Design Legislation, Shieva Salehnia

Brooklyn Journal of International Law

This Note examines the necessity of creating clothing design protection legislation in the United States as a catalyst for up-and-coming designers to compete with European Union luxury conglomerates in reaching the new, emerging middle class in mainland China. It first discusses the current international intellectual property regimes pertinent to creative expression and brand ownership in the context of the fashion industry and clothing design. It looks at how international agreements may provide general harmonization strategies for trademark protection but leave up-and-coming brands and designers out of its framework. It also provides a brief overview of the persistence and prevalence of …

The Costs And Consequences Of Incorrect Citations: European Law In The U.S. Supreme Court, Andrea Pin

Brooklyn Journal of International Law

Building on the controversy over foreign citations in domestic courts, this article reflects on the U.S. Supreme Court's practice of quoting EU law and the European Court of Human Rights’ case law. It offers a detailed examination of how the U.S. Supreme Court has used European sources and shifts the debate over whether it should use them, by explaining a different way in which the court could exploit them. The article focuses on the three fields in which such foreign case law has either influenced the U.S. Supreme Court decisions or otherwise impacted the judges’ reasoning: laws targeting homosexual conduct; …

Making The Time Fit The Crime: Clearly Defining Online Harassment Crimes And Providing Incentives For Investigating Online Threats In The Digital Age, A. Meena Seralathan

Brooklyn Journal of International Law

This Note examines online harassment and online stalking throughout the world, including the current landscape of Internet communication, the effects of cyberharassment and cyberstalking on its victims, and both the difficulties in defining these crimes in criminal codes and the difficulties in inspiring law enforcement to investigate complex internet crimes. Specifically, this Note discusses the problems inherent in current cyberharassment and cyberstalking treaties and legislation within the United States, Canada, and Australia. For example, this Note analyzes how these jurisdictions define cyberharassment and cyberstalking, how these definitions are inadequate for dealing with current forms of cyberharassment and cyberstalking (both due …

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

Other Publications

No abstract provided.

Soes And State Governance: How State-Owned Enterprises Influence China's Legal System, Zheng Lei, Benjamin L. Liebman, Curtis J. Milhaupt

Faculty Scholarship

Most of the existing literature on Chinese SOEs asks how state ownership affects their governance. This chapter turns the question on its head: How do SOEs affect state governance in China? The chapter begins by distinguishing different modes of interaction between the Party-state and SOEs. Focusing on these modes of interaction, the chapter analyzes how SOEs have influenced China’s legal system. This chapter discusses the ideological and positional advantages enjoyed by SOEs in their legal treatment, and provide an analysis of SOEs’ impact on legislation, administrative rulemaking and in particular, the courts. It concludes by exploring a key implication of …

Vermeule Unbound, Philip A. Hamburger

Faculty Scholarship

My book asks Is Administrative Law Unlawful? Adrian Vermeule answers “No.” In support of his position, he claims that my book does not really make arguments from the U.S. Constitution, that it foolishly denounces administrative power for lacking legislative authorization, that it grossly misunderstands this power and the underlying judicial doctrines, and ultimately that I argue “like a child.”

My book actually presents a new conception of administrative power, its history, and its unconstitutionality; as Vermeule has noted elsewhere, it offers a new paradigm. Readers therefore should take seriously the arguments against the book. They also, however, should recognize that …

Taxing Remote Sales In The Digital Age: A Global Perspective, Walter Hellerstein

American University Law Review

No abstract provided.

The United States, Richard Briffault

Faculty Scholarship

The United States is an example of how three branches of government can stall and derail reform initiatives. The judiciary in particular is central to the US experience with political finance reform, repeatedly striking down legislation on party finance, despite consensus from executive and legislative branches. The most recent Supreme Court ruling, in April 2014, struck down one of the last remaining federal regulations, on the overall campaign contribution limits for individuals. At a subnational level, the United States does, however, see significant variations in terms of regulations on the flow of money into politics at a state level. In …

Reflections On Obergefell And The Family-Recognition Framework's Continuing Value, Suzanne B. Goldberg

Faculty Scholarship

Unlike a typical law review essay, I offer reflections here based largely on my own past work in LGBT rights advocacy. Together with related scholarship, I rely on these experiences to argue that the 'family recognition" framework underlying earlier advocacy has value going forward, even after the Supreme Court's ruling in favor of nationwide marriage equality.

Genealogies Of Cost–Benefit Analysis In Transatlantic Regulatory Cooperation, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

Cost–benefit analysis (CBA) has become a quintessential tool in administrative law informing a variety of modes of regulatory governance. It provides a justification for the regulation of markets based on a quasi-scientific and seemly neutral logic to assess the impact of secondary legislation by government agencies. A new frontier for CBA is the promotion of trade liberalization. It features prominently in the regulatory chapter of the Transatlantic Trade and Investment Partnership (TTIP). During the TTIP negotiations, scholars deployed CBA as a “neutral” tool to achieve greater convergence or reassert divergence and experimentalism in regulatory governance across the Atlantic. A genealogical …

Forging Path For Women's Rights In Customary Law, Tamar Ezer

Articles

No abstract provided.

The European Union: A Comparative Perspective, Ernest A. Young

Faculty Scholarship

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental …