Comparative and Foreign Law Commons^™

Procedural Justice Beyond Borders: Mediation In Ghana, Jacqueline Nolan-Haley, James Kwasi Annor-Ohene

Faculty Scholarship

Ghana enacted comprehensive alternative dispute resolution legislation in 2010 with the specific goals of providing access to justice and promoting domestic and foreign direct investment (The Act). A significant aspect of the Act was the inclusion of customary arbitration and mediation. The focus of this Article is on mediation as this is the first time that mediation has been included in a statute in Ghana. The Act’s definition of mediation reflects an understanding of the mediation process based upon the western values of individual autonomy and party self-determination. These principles represent a significant departure from the more communal values of …

Transforming Family Law Through Same-Sex Marriage: Lessons From (And To) The Western World, Macarena Saez

Scholarly Articles in Law Reviews & Journals

Same-sex marriage is a 21st century phenomenon. In less than 13 years more than 15 countries have amended their marriage laws to include same-sex couples. Some countries have made the change through political decisions but others have reached the change through adjudicative processes. A comparative analysis of decisions from the highest courts of countries or states granting marriage to same-sex couples demonstrates: 1. similar arguments are presented to these courts when making the case for and against same-sex marriage; 2. courts are using comparative law to justify their decisions on same-sex marriage; 3. the majority of courts in these countries …

Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US …

A New Regulatory Framework For Low-Impact/High-Value Aquaculture In Nova Scotia, Meinhard Doelle, William Lahey

Reports & Public Policy Documents

The report is the result of a detailed assessment of aquaculture regulations in Nova Scotia. It proposes a new regulatory framework for the Nova Scotia aquaculture industry based on the principles of effectiveness, openness, transparency, accountability, proportionality, integration, and precaution. The report is based on a 18 months independent review of the industry and how it is regulated, as well as various forms of engagement with the public and key stakeholders. The report draws on regulatory practice in key jurisdictions around the world, including Scotland, Chile, the US, and other provinces in Canada.

It's Complicated: Age, Gender, And Lifetime Discrimination Against Working Women - The United States And The U.K. As Examples, Susan Bisom-Rapp, Malcolm Sargeant

Faculty Scholarship

This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.

To capture the phenomenon, the article …

Comparative Urban Governance For Lawyers, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Revolution Imagined: Cause Advocacy, Consumer Rights, And The Evolving Role Of Ngos In Thailand, Frank W. Munger

Articles & Chapters

This article describes the founding and evolution of a “Thai-style” NGO dedicated to consumer protection. Through a description of the NGO and the career of its founder, the article brings to light features of the evolution of NGO based advocacy in Thailand from the student uprising in 1973 to the present. The legacy of the 1973 October Generation of activists continues to influence development of NGOs but new emphasis on rights has emerged since the era of constitutional reform in the 1990s. Many NGOs now make use of litigation to attempt to achieve social change, but litigation, like other long-standing …

Racial Profiling As Collective Definition, Trevor George Gardner

Scholarship@WashULaw

Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice. However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In the article, I review the literature on group distinction to …

The Role Of Comparative Law In Shaping Corporate Statutory Reforms, Marco Ventoruzzo

Faculty Scholarship

This Essay discusses how comparative law played and plays a role in the statutory development of corporate laws. The influence of laws of other systems on the development of statutory law is common, explicit, and represents a tradition that accompanied legal reforms since the very beginning of the development of legislation.

Focusing on modern corporate law, I argue (but the argument could be extended to many other legal fields) that it is necessary to distinguish two basic ways in which comparative law influences legal reforms in one particular jurisdiction. The first one is through regulatory competition among different systems. In …

Insights From Canada For American Constitutional Federalism, Stephen F. Ross

Faculty Scholarship

The U.S. Supreme Court's decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), has again focused widespread public attention on the Court as an arbiter of the balance of power between the federal government and the states. The topic of the proper role a nation's highest court in this respect has been important and controversial throughout not only American, but also Canadian history, raising questions of constitutional theory for a federalist republic: What justifies unelected judges interfering with the ordinary political process with regard to federalism questions? Can courts create judicially manageable doctrines to police …

Ongoing Issues In Russian Corporate Governance, Merritt B. Fox

Faculty Scholarship

This Article concerns Russian corporate governance today. It starts by arguing that there are fundamental differences between the policy questions raised by SOEs and those raised by non-SOEs and that the analysis needs to separate out these two kinds of corporations. The Article then goes on to consider several ongoing issues relating to non-SOEs. To start, it suggests the need for a set of rules, backed by reliably applied stiff sanctions, requiring disclosure of all situations where a person, by himself or as a member of a coordinated group, is the beneficial owner of sufficient shares to be able to …

Equality In Asia, Kate O'Regan, Madhav Khosla

Faculty Scholarship

If the right to equality promises more than it can ever deliver, it is also a right whose text and application reflects the history of the society in which it applies. The right to equality is thus particularly challenging for comparative law. Although it is found in nearly every modern democratic constitution, the formulation, interpretation and application of the right varies markedly and it accordingly presents acutely difficult questions for a study such as this. The difficulties not only arise from the differences in historical, socio-economic and political context, but also from differing conceptions of equality itself. In this brief …

Juries, Lay Judges, And Trials, Toby S. Goldbach, Valerie P. Hans

All Faculty Publications

“Juries, Lay Judges, and Trials” describes the widespread practice of including ordinary citizens as legal decision makers in the criminal trial. In some countries, lay persons serve as jurors and determine the guilt and occasionally the punishment of the accused. In others, citizens decide cases together with professional judges in mixed decision-making bodies. What is more, a number of countries have introduced or reintroduced systems employing juries or lay judges, often as part of comprehensive reform in emerging democracies. Becoming familiar with the job of the juror or lay citizen in a criminal trial is thus essential for understanding contemporary …

Translating Religious Principles Into German Law: Boundaries And Contradictions, Pascale Fournier, Régine Tremblay

All Faculty Publications

First we present the basic rules of Islamic and Jewish law and the German state law that regulates them. Next we contend that the boundaries for shaping and applying religious norms are blurry. We argue that the conflicting outcomes might be explained by boundless discretion and informality in the religious adjudication process, but that this structure is not foreign to so-called secular family law. Thus, if the project of recognizing religious principles when it comes to family law is to be maintained, it must take stock of the conceptual and practical conflicts that inhere to the sphere of family law, …

Unasur: The Newest 'Global Player' Or Neo-Boliverian Fantasy?, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

The Union of South American Nations (Unasur) presents the most recent vision for trade liberalization and political, economic, and social integration amongst South American countries. Unasur has set 2019 as the year by which it hopes to accomplish many of its goals, such as full regional integration and tariff elimination. But, as 2019 slowly approaches, it remains to be seen whether Unasur will in fact be able to reach these goals. While Unasur’s future is certainly compelling, before heralding Unasur as the long-awaited panacea for pure regional integration, important lessons can be drawn from previous attempts at and iterations of …

Warrant Canaries Beyond The First Amendment: A Comment, Jonathon Penney

Articles, Book Chapters, & Popular Press

Warrant canaries have emerged as an intriguing tool for Internet companies to provide some measure of transparency for users while also complying with national security laws. Though there is at least a reasonable argument for the legality of warrant canaries in the U.S. based primarily on First Amendment "compelled speech" doctrine, the same cannot be said for the use of warrant canaries in other "Five Eyes” intelligence agency countries — United Kingdom, Canada, New Zealand, and Australia — where the legality of warrant canaries has yet to be examined in either cases or scholarship. This comment, which provides an overview …

Faustian Perspective On Digitization: Making A Deal With The Devil, Lucie Guibault

Articles, Book Chapters, & Popular Press

Digitization of library material, archives and museum collections, arts organizations repositories is progressing rapidly, and opens up new possibilities of accessing, using and re-using the knowledge embodied in cultural heritage. By giving new purpose and function to works, it enhances the value of the public domain and enriches the public sphere. However, digitization also creates the conditions for the rise of new proprietary entitlements over cultural objects. Such ‘informational monopolies’ are often justified as necessary to recoup the high costs of digitization, or as the basis to provide additional sources of income for the cultural institutions. At the same time, …

Egypt, Lila Meadows, Nadia Adib Bamieh, Janet E. Lord

All Faculty Scholarship

This chapter is a factbook summarizing disability laws, organisations, and statistics in Egypt as of 2014.

Building A Government Of Laws: Adams And Jefferson 1776–1779, James Maxeiner

All Faculty Scholarship

America’s rule of law is not working well because many American lawyers confound their rule of law with common law and with common law methods. They overlook the contribution of good legislation to good government. They fixate on judges, judge-made law and procedure. America’s founders, in particular, John Adams and Thomas Jefferson, did not. They were not entranced by common law and by common law methods. This chapter shows how in the first few years of American independence, Adams popularized the term “government of laws” and how Jefferson drafted statutes for a government of laws. Neither of them assigned common …

Up In The Air Over Taxing Frequent Flyer Benefits: The American, Canadian, And Australian Experiences, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.

U.S. Executive Branch Patent Policy, Global And Domestic, Arti K. Rai

Faculty Scholarship

No abstract provided.

Redefining Relevancy And Exclusionary Discretion In Sir James Fitzjames Stephen’S Indian Evidence Act Of 1872: The Singapore Experiment And Lessons For Other Indian Evidence Act Jurisdictions, Siyuan Chen

Research Collection Yong Pung How School Of Law

In many jurisdictions, the rules of evidence can often be instrumental in determining the outcome of a dispute. But to what extent can evidence law be controlled by codification, or is it better to leave its regulation and development to the judges via common law? In an attempt to bridge the gap between the rules of an antiquated evidence statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence, while new provisions were introduced to act as a check against abuse. However, it will be …

“. . . Speak Now Or Forever Hold Your Peace . . .” —The Influence Of Constitutional Argument On Same-Sex Marriage Legislation Debates In Australia, Neville Rochow

BYU Law Review

No abstract provided.

The Unnecessary And Restrictive Constitutional Amendments Concerning Religious Freedom In Mexico, Javier Saldaña Serrano

BYU Law Review

No abstract provided.

The Shinto Cases: Religion, Culture, Or Both—The Japanese Supreme Court And Establishment Of Religion Jurisprudence, Frank S. Ravitch

BYU Law Review

No abstract provided.

Freedom Of Religion In China Under The Current Legal Framework And Foreign Religious Bodies, Ping Xiong

BYU Law Review

No abstract provided.

The Controversy Over Citations To Foreign Authorities In American Constitutional Adjudication And The Conflict Of Judicial Philosophies: A Reply To Professor Glendon, Michel Rosenfeld

Articles

The controversy over U.S. Supreme Court justices citing foreign authorities in constitutional cases reflects a deeper ideological divide between restrictive and expansive judicial philosophies. This debate, evident in cases like Lawrence v. Texas and Roper v. Simmons, transcends traditional labels like originalism or political ideology, focusing instead on whether judges should defer to majoritarian decisionmaking or actively shape evolving rights. The article argues that the furor over foreign citations will diminish once the broader philosophical clash over judicial interpretation is resolved, as differences over foreign authorities are secondary to this central divide.

A Defining Moment: A Review Of Disability & Equity At Work, Why Achieving Positive Employment Outcomes For Individuals With Disabilities Requires A Universal Definition Of Disability, Nicole Buonocore Porter

Faculty Publications

This book, Disability & Equity at Work, describes its goal as "to discuss factors contributing to disabled persons' inequality at work and to offer proposals for leveling this uneven playing field." The book is an interdisciplinary, international review of the laws, policies, initiatives, and studies regarding the employment situation of individuals with disabilities. It is a compilation of fifteen different chapters by different authors, which cover a wide variety of subject matters. Some chapters focus on low- and middle-income countries, where individuals with disabilities often have low employment and high poverty rates. And some chapters focus on problems that …

Screening Out Innovation: The Merits Of Meritless Litigation, Alexander A. Reinert

Articles

Courts and legislatures often conflate merit-less and frivolous cases when balancing the desire to keep courthouse doors open to novel or unlikely claims against the concern that entertaining ultimately unsuccessful litigation will prove too costly for courts and defendants. Recently, significant procedural and substantive barriers to civil litigation have been informed by judicial and legislative assumptions about the costs of entertaining merit-less and frivolous litigation. The prevailing wisdom is that eliminating merit-less and frivolous claims as early in a case’s trajectory as possible will focus scarce resources on the truly meritorious cases, thereby ensuring that available remedies are properly distributed …

What Can Comparative Legal Studies Learn From Feminist Legal Theories In The Era Of Globalization, Dana Raigrodski

Articles

This article re-examines the field of comparative law and comparative legal studies through the lens of feminist legal theories/studies (FLT). It suggests that lessons learned from the development of FLT and insights from shared epistemology and methodology within FLT can inform the ongoing controversies within comparative legal studies and provide comparative legal scholars and practitioners with the tools to maximize the benefits of comparative legal studies in the era of increasing global interdependence.

Part II begins by briefly reviewing key controversies and critiques within comparative legal studies. It highlights the debate on whether comparative law encompasses a substantive area of …