Comparative and Foreign Law Commons^™

The New Class Actions In Japan, Michael J. Madderra

Washington International Law Journal

This comment provides the first journal publication on Japan’s new class action law, promulgated on December 11, 2013. In the past, Japanese attorneys used rules of joinder and other alternatives to form de facto class action lawsuits. This comment provides insight into the development of Japan’s new class action law through a discussion of the historical context in which it was created. After discussing the law and its development, this comment argues that Japan should examine U.S. jurisprudence to prepare for challenges to the new class action system. Comparing Japanese and U.S. class action systems is appropriate because of similarities …

Repeating The Failures Of Carbon Trading, Brittany A. Harris

Washington International Law Journal

Carbon emissions trading, or cap-and-trade, is increasingly in vogue among Pacific Rim countries as a means of combating climate change. In theory, cap-and-trade promises to solve climate change by capping and gradually reducing the amount of carbon dioxide and greenhouse gas emissions, and to do so with maximum economic efficiency. In reality, environmentally effective and economically efficient carbon emission trading systems have eluded both the international community and the European Union, and in practice have arguably increased emissions by artificially prolonging and legitimizing reliance on fossil fuels. In spite of this poor track record, five countries on the Pacific Rim …

The Slow-Burning Genocide Of Myanmar's Rohingya, Maung Zarni, Alice Cowley

Washington International Law Journal

Since 1978, the Rohingya, a Muslim minority of Western Burma, have been subject to a state-sponsored process of destruction. The Rohingya have deep historical roots in the borderlands of Rakhine State, Myanmar, and were recognized officially both as citizens and as an ethnic group by three successive governments of post-independence Burma. In 1978, General Ne Win’s socialist military dictatorship launched the first large-scale campaign against the Rohingya in Rakhine State with the intent first of expelling them en masse from Western Burma and subsequently legalizing the systematic erasure of Rohingya group identity and legitimizing their physical destruction. This on-going process …

Rediscovering "Law" In Myanmar: A Review Of Scholarship On The Legal System Of Myanmar, Melissa Crouch

Washington International Law Journal

Myanmar’s legal system is an understudied area in the academic field of Asian Legal Studies. This article aims to provide a map of legal scholarship in Myanmar that can be built on in the future. It identifies the key issues and arguments that have driven research on law in Myanmar, and the central academics whose oeuvre of publications have sustained the field. It is organized around four broad themes: custom, religion, and the law; public law and governance; corporate law; and the politics of law. It suggests that in order to build the next generation of legal scholarship, future research …

Finding Justice Scalia In Burma: Constitutional Interpretation And The Impeachment Of Myanmar's Constitutional Tribunal, Dominic J. Nardi Jr.

Washington International Law Journal

While the comparative courts literature has yielded valuable insights into confrontations between political elites and judges, we still know relatively little about if and how jurisprudential methodology affects the ability of constitutional courts to survive such crises. How does the choice between originalism versus living constitutionalism affect a court’s relationship with the other branches of government? Do political elites tend to be more hostile towards certain methods of interpretation? The 2012 impeachment of Myanmar’s Constitutional Tribunal presents an interesting example of the interplay between jurisprudence and politics. After fifty years of military rule, Myanmar’s 2008 Constitution produced a new civilian …

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner

Georgia State University Law Review

This essay is a critical response to the 2013 commemorations of the75th anniversary of the Federal Rules of Civil Procedure.The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice”with decisions according to law.

By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g.,plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary …

The Essential Role Of Courts For Supporting Innovation, Erin O'Hara O'Connor, Christopher R. Drahozal

Scholarly Publications

Commercial parties commonly resolve their disputes in arbitration rather than courts. In fact, some estimate that as many as 90 percent of international commercial contracts opt for arbitration of future disputes, and others claim that some industries never resort to courts. However, a study of arbitration clauses in a wide variety of contracts, including franchise agreements, CEO employment contracts, technology contracts, joint venture agreements and consumer cell phone contracts, reveals that parties very often carve out a right to resort to courts for the resolution of claims designed to protect information, innovation, and reputation. Studies of international and cross-border contracts …

Killing A Chicken To Scare The Monkey: The Unequal Administration Of Death In China, Jessica J. Shen

Washington International Law Journal

China’s frequent usage of the death penalty in order to achieve deterrence of crime is well known to the international community; however, China also has a strong tradition of legal mercy stemming from imperial rule. In turn, imperial legal mercy originated from Confucian values of benevolence and humaneness. Although modern China emerged as a rejection of Imperial China’s Confucian hierarchal social structures, these cultural traditions have endured. For example, Confucianism’s humane influence can be seen in statutory and procedural mechanisms demonstrating benevolence towards criminals. However, only applying this benevolence to a select group of people betrays modern China’s statutory and …

Foreigners In Burma: A Framework For Responsible Investment, Rachel E. Ryon

Washington International Law Journal

Burma is hailed as a great democratic success story: a once-rogue nation holding elections, releasing political prisoners, and promising human rights reforms. The people elected to Parliament Aung San Suu Kyi, the leader of the democratic movement who was under house arrest for more than twenty years. The world responded with applause and open pocketbooks. In April of 2012, Ban Ki-moon, Secretary General of the United Nations, asked members to lift their sanctions on the formerly “rogue” nation and begin investing. But for a resource-rich country with a long track record of corruption, this flood of foreign investment will likely …

Global Analytical Lessons For Evaluating A Myanmar Sovereign Wealth Fund, Oliver T. Gilbert

Washington International Law Journal

After decades of international condemnation, Myanmar, also known as Burma, has initiated rapid political, economic, and legal reforms. In recognition of these reforms, Western governments have broadly curtailed longstanding sanctions against investing in Myanmar. This sudden opportunity for foreign companies to extract Myanmar’s plentiful petroleum resources has increased the need for Myanmar to implement resource revenue management strategies to guard against adverse consequences of the resource curse. Among these strategies is a call by respected global commentators to create a Myanmar sovereign wealth fund (“SWF”). This article describes each of the main effects generally associated with the resource curse and …

Intermediary Trademark Liability: A Comparative Lens, Stacey Dogan

Shorter Faculty Works

Although we live in a global, interconnected world, legal scholarship – even scholarship about the Internet – often focuses on domestic law with little more than a nod to developments in other jurisdictions. That’s not necessarily a bad thing; after all, theoretically robust or historically thorough works can rarely achieve their goals while surveying the landscape across multiple countries with disparate traditions and laws. But as a student of U.S. law, I appreciate articles that explain how other legal systems are addressing issues that perplex or divide our scholars and courts. Given the tumult over intermediary liability in recent years, …

Common Capital: A Thought Experiment In Cross-Border Resolution, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Cross-border bank resolution efforts focus on burden-sharing between bank owners, private creditors and the public. There is little talk of burden-sharing among governments, despite the rich history of governments trying to stick one another with the cost of financial conglomerate failures. There is an unspoken fear that acknowledging the need to allocate losses among governments would undermine post-crisis pledges of No More Bailouts. This symposium essay argues for making government stakes in private financial firms more transparent, and for using the contingent public share as a key to loss allocation among governments in cross-border banking crises.

Aiding And Abetting: The Illegality Of Morocco's Nationalist Expansion Into Western Sahara And Their Support From The United States, Rachid H. Yousfi

Master's Theses

This paper will address the illegality of Morocco’s nationalist annexation of Western Sahara and how the United States plays the accommodating role through the selling of arms, economic aid, and diplomatic support. Considered as Africa’s last colony, the Saharawi people have not experienced the basic human right to self-determination and the right for independence. These rights are continued to be withheld for the sake of Moroccan nationalism and their “rightful and ethnic” claims to the territory, disregarding the International Court of Justice (ICJ)’s advisory opinion ruling in favor of Saharawi self-determination. It explores the chronology of the Saharawi population from …

The Competing Approaches To The Foreign Trade Antitrust Improvements Act: A Fundamental Disagreement, Morgan Franz

Pepperdine Law Review

This Comment explores the history and reasoning behind a recent reexamination of the FTAIA in light of Arbaugh v. Y & H Corp., examines both the propriety and the implications of the competing interpretations of the FTAIA, and argues that the resolution of the competing approaches is beyond the purview of the lower courts. Part II provides an overview of the extraterritorial reach of the Sherman Act leading up to the FTAIA, as well as the judicial treatment of the FTAIA prior to Arbaugh. Part III discusses the impact of Arbaugh and subsequent Supreme Court cases applying the “clearly states” …

Chinese Ritual And The Practice Of Law, Mary Szto

Touro Law Review

While there is much literature about the contemporary practice of law in China, almost no articles discuss the rituals involved. This article describes five common Chinese rituals in the contemporary practice of law: drinking tea, banqueting, drinking alcohol, napping, and karaoke. These rituals are traced to their ancient origins in ancestor worship, traditional Chinese medicine, and Confucian, Daoist, and Buddhist thought. Then they are explicated for their contemporary meaning. Properly observed, these rituals promote just governance, harmony, balance, and physical and spiritual wholeness. They should be celebrated and practiced without excess.

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 …

Recent Important Decisions By Thebrazilian Supreme Court, Keith S. Rosenn

University of Miami Inter-American Law Review

No abstract provided.

Reversal Of Fortune: How The German Courts Found Their Human Rights And Helped The European Courts Find Theirs, Henry Biggs

University of Miami International and Comparative Law Review

No abstract provided.

China's Anti-Dumping Regime And Compliance With Anti-Dumping Principles: An Analysis Using Agricultural Dumping Case Studies, Adam Soliman

University of Miami International and Comparative Law Review

The paper assesses China's anti-dumping regime, one of the important structures implemented by China in order to become a full member of the World Trade Organization (WTO). Section One sets forth the WTO's anti-dumping principles as well as analyzes the differences between the WTO principles and the definition of "dumping" as understood by economists. In significant respects, the WTO principles allow situations that do not actually constitute dumping-in an economic sense-to be treated as "dumping," leading to the imposition of duties and sanctions. Next, the paper evaluates the degree to which the separate anti-dumping regimes of China and the U.S. …

El Precio De Los Pesticidas: La Criminalización De La Fumigación Con Plaguicidas En Argentina Y Las Repercusiones Nacionales E Internacionales, Jamie Lynn Vanaria

University of Miami Inter-American Law Review

No abstract provided.

Rethinking Hedge Fund Regulation: Focusing On The U.S., The U.K., And Korea, Eun Jip Kim

Maurer Theses and Dissertations

Until the global financial crisis in 2008, hedge funds had relied on various safe harbor rules to remain unregulated. Since then, various subprime mortgage crisis-driven regulatory reforms have been made worldwide. Through the implementation of registration and reporting obligations the hedge fund regulatory framework has been changed to reinforce regulations that may provide financial stability, making hedge funds more like other regulated entities.

Current hedge fund regulations are based on the policy grounds, on one hand, that macro-prudential regulations are necessary due to the potential adverse effects on the market from hedge fund size and leverage positions, and on the …

Cooperation Of Amazon Countries: A Comparative Analysis Of Forest Law Towards A Cooperative Effort For The Conservation And (Sustainable) Development Of The Amazon Rainforest, Maria Antonia Tigre

Dissertations & Theses

The Amazon region contains the world’s largest river, the world’s biggest tropical forest, and the world’s richest biodiversity and is shared by nine countries (Bolivia, Brazil, Colombia, Ecuador, Guyana, French Guyana, Peru, Suriname and Venezuela), each with its individual approach as to how to protect this environment. However, due to its unique value in the local, national, regional and global context, cooperation is required to manage this ecosystem. This thesis thus evaluates the approaches of environmental protection in the Amazon region at the national, regional, and international levels through the lens of forest protection.

At the international scale the international …

Offshore Petroleum Facility Incidents Post Varanus Island, Montara, And Macondo: Have We Really Addressed The Root Cause?, Tina Hunter

William & Mary Environmental Law and Policy Review

This Article analyzes the role of offshore petroleum legislation in contributing to offshore facility integrity incidents in Australia’s offshore petroleum jurisdiction. It examines the regulatory framework that existed at the time of the Varanus Island, Montara, and Macondo facility incidents, determining that the regulatory regime contributed to each of these incidents. Assessing the response of the Commonwealth government to the regulatory framework existing at the time of the events, particularly the integration of well regulation as part of the National Offshore Petroleum Safety Authority’s (“NOPSA”) functions and the establishment of a national offshore regulator, this Article determines that while the …

Divergent Paths, Similar Results: How African Asylum Seekers Have Been Failed In Both Israel And Malta Despite Varying Procedures And Treatment, Edward N. Krakauer

University of Miami International and Comparative Law Review

No abstract provided.

Lies And Their Protection: A Comparison Of The Right To Lie About Receiving A Military Honor In The United States And Canada, Marilyn N. Harvey

University of Miami International and Comparative Law Review

No abstract provided.

Moving Towards Sustainable Coastal Development In South Asia By Linking Coastal Climate Change Adaptation With Integrated Coastal Zone Management Through The Instrumentality Of Law, Tony George Puthucherril

PhD Dissertations

For long, coastal management focused on the sustainable utilization of coastal resources and avoidance and management of conflict, as well as the promotion of complementarities between users. However, with rising sea levels and other climate change impacts, coastal management has become increasingly complex. This thesis investigates the legal instruments underpinning the management of coastal zones, exploring the concept of sustainable coastal development (SCD) and the relevance of the integrated coastal zone management (ICZM) process. Specifically, the discourse analyzes how law and legal regimes play a backbone role in strengthening and supporting ICZM implementation by facilitating the linkage between ICZM and …

Dressing And Addressing The Kenyan Judiciary: Reflecting On The History And Politics Of Judicial Attire And Address, Willy Mutunga

Buffalo Human Rights Law Review

No abstract provided.

Beyond The Fakultas'S Four Walls: Linking Education, Practice, And The Legal Profession, Stephen A. Rosenbaum

Washington International Law Journal

More than fifty years after the first post-colonial Southeast Asian regional conference on legal education, commentators and educators do not necessarily agree on the appropriate curricular balance between theory, doctrine, and practice, or what role the government should play in directing the orientation of legal studies and careers in Indonesia’s law schools. The author argues in favor of legal education that is rich in experiential learning and integrates the involvement of practitioners and doctrinal faculty. This objective may be a relatively new reality in Indonesia, but also one that needs revitalization in other Southeast Asian nations and beyond. This article …

The Emerging Structures Of Socialist Constitutionalism With Chinese Characteristics: Extra-Judicial Detention And The Chinese Constitutional Order, Larry Catá Backer, Keren Wang

Washington International Law Journal

China is developing its own distinctive path towards socialist constitutionalism and rule of law, one that reflects China's history and its unique circumstances but also conforms to the general principles of transnational constitutionalism. The Chinese constitutional order is grounded on a principal of separation of powers that distinguishes between an administrative power assigned to the government and a political authority assigned to the Chinese Communist Party (“CCP”). This constitutional order is reflected in two related but distinct legal contexts—laojiao (the system of administrative detentions, re-education through labor, or “劳动教养”) and shuanggui (the system of intra-CCP discipline of its cadres, …

Intragroup Discourse On Intragroup Protections In Muslim-Majority Countries, Asma T. Uddin

Chicago-Kent Law Review

Many Muslim-majority countries do not provide adequate protection for dissent of any sorts—religious, social, or political. In the realm of religious dissent, these countries persecute not just non-Muslims, but in fact, the persecution is harshest and most frequent against Muslim dissenters. This paper explores how protection for intragroup dissent in these countries is the first and most crucial step in protecting dissent more broadly and lays out both the current state of affairs and several avenues for reform.