Comparative and Foreign Law Commons^™

Frivolous Motions And Abuses Of Process At The Ad Hoc International Criminal Tribunals, Devon Whittle

Cardozo Journal of International and Comparative Law

The article examines the application of rules sanctioning frivolous or abusive motions at the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). While these rules are essential to prevent abuse of process, their application lacks consistency and clarity, leading to concerns about bias and undermining the principle of equality of arms. The article argues that developing a standardized framework for applying these rules would enhance fairness, reduce allegations of prejudice, and provide clearer guidance for counsel.

Towards A Network Of Marine Protected Areas In The South China Sea: Legal And Political Perspectives, Hai Dang Vu

PhD Dissertations

The once pristine and rich marine environment of the South China Sea is degrading at an alarming rate due to the rapid socioeconomic development of the region. Despite this, and because mainly of complicated sovereignty and maritime boundary disputes, coastal States have not been able to develop effective regional cooperation to safeguard the shared marine environment. This dissertation, “Towards a Network of Marine Protected Areas in the South China Sea: Legal and Political Perspectives”, researches legal and political measures to support the development of a network of marine protected areas in the South China Sea. Such a network, if properly …

Targeting And The Concept Of Intent, Jens David Ohlin

Cornell Law Faculty Publications

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively …

Intellectual Property And The Protection Of Indigenous Culture In The United States And New Zealand: An Effective Solution For Indigenous Communities?, Dinisha L. Fernando

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Toward A Jurisprudence Of Free Expression In Russia: The European Court Of Human Rights, Sub-National Courts, And Intersystemic Adjudication, Robert B. Ahdieh, H. Forrest Flemming

Faculty Scholarship

Protection of free expression in Russia is headed the wrong direction, but one institution may still be able to slow its backward slide: the Russian judiciary. In particular, sub-national courts-those operating at the ground level-have the potential to shape a renewed jurisprudence of free expression in Russia. To encourage as much, the European Court ofHuman Rights (ECHR) should engage the Russian courts in a pattern of "intersystemic adjudication, "pressing them to embrace ideas about the role of courts, the law, human rights, and free expression more in line with international norms. Hopefully, this can reverse Russia's current path toward the …

Inter-Country Adoption And The Special Rights Fallacy, James G. Dwyer

Faculty Publications

No abstract provided.

Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Mckinley Brennan

Working Paper Series

This paper argues that questions about "religious freedom" must be subordinated to the fundamental principle of the liberty of the Church, libertas Ecclesiae. The First Amendment's agnosticism with respect to the liberty of the Church is not ultimately normative. Catholics and others who merely seek religious "accommodation," as with the HHS mandate, for example, are agents of a status quo that illegitimately has comfortable self-preservation as its highest value. It is Catholic doctrine that "creation was for the sake of the Church," not for the sake of, say, religious freedom. The paper argues that the contingent constitution of …

International Cryptography Regulation And The Global Information Economy, Nathan Saper

Northwestern Journal of Technology and Intellectual Property

With the meteoric rise of the Internet and e-commerce in the 1990s came great attention to the problems and opportunities associated with cryptography. Throughout that decade, the United States and many foreign countries debated and experimented with various forms of cryptography regulation, and attempts were made at international harmonization. Since then, however, policy-making activity around cryptography has slowed, if not halted altogether, leaving individuals and companies to face a bewildering array of regulations—or, in many cases, to face regulations that are extraordinarily unclear and haphazardly applied.

This Note seeks to introduce the reader to the issue of international cryptography regulation …

Au Revoir, Will Contests: Comparative Lessons For Preventing Will Contests , Margaret Ryznar, Angelique Devaux

Nevada Law Journal

No abstract provided.

Australia's Proposed Exercise In Contract Law Reform: International Convergence And Regional Implications, Basil C. Bitas

Research Collection Yong Pung How School Of Law

In July 2012, the Australian Attorney-General’s Department began soliciting comment regarding the best way to reform Australian contract law to render it more suitable for the demands of 21st century commerce. The effort marks an appreciation of the changing commercial environment and challenges the traditional common law preference for piecemeal, organic reform through case law. The proposed effort has implications for the global convergence of legal systems and further poses practical questions as to what form any such contractual reform should take. Codification in the European, civil law sense is a possible but unlikely outcome. A persuasive but non-binding restatement …

Hollow Spaces, Charles H. Brower Ii

Law Faculty Research Publications

No abstract provided.

When Courts Determine Fees In A System With A Loser Pays Norm: Fee Award Denials To Winning Plaintiffs And Defendants, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

Under the English rule, the loser pays litigation costs whereas under the American rule, each party pays its own costs. Israel instead vests in its judges full discretion to assess fees and costs as the circumstances may require. Both the English and the American rules have been the subjects of scholarly criticism. Because little empirical information exists about how either rule functions in practice, an empirical study of judicial litigation cost award practices should be of general interest. This Article presents such a study in the context of Israel’s legal system. We report evidence that Israeli judges apply their discretion …

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Working Paper Series

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is its role …

“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Mckinley Brennan

Working Paper Series

John Locke understood human happiness to amount to the removal of "uneasiness." This paper argues that,to the extent that the United States is a nation dedicated to "the pursuit of happiness" understood as the removal of "uneasiness," same-sex unions or marriages should be given legal recognition. While Locke defended a variation on traditional marriage on the grounds of progenitiveness and care for dependent offspring, his more foundational commitment to the importance of the removal of uneasiness precludes, on pain of inconsistency, limiting marriage to opposite-sex couples. This paper argues, furthermore, that conservatives and neo-conservatives who celebrate this nation's being …

Counting Once, Counting Twice: The Precarious State Of Subsidy Regulation, Wentong Zheng

UF Law Faculty Publications

Subsidy regulation is in a precarious state. While it has been so ever since the conception of the current subsidy regulation regime, the recent disputes between the United States and China over the “double counting” or “double remedies” of subsidies have threatened the mere functionality of the current regime. This Article argues that the double counting controversy reveals the self-contradictions of the current subsidy regulation regime as to the fundamental question of why subsidies need to be regulated. These self-contradictions make it impossible to devise a coherent solution to the double counting problem within the framework of the current subsidy …

The Chinese Legal Tradition As A Cultural Constraint On The Westernization Of Chinese Environmental Law And Policy: Toward A Chinese Environmental Law And Policy Regime With More Chinese Characteristics, Paul A. Barresi

Pace Environmental Law Review

This Article argues that the Chinese legal tradition is essentially a Confucian legal tradition, and that its Confucian attributes significantly constrain the effectiveness of the Western-style environmental laws enacted by the PRC in recent decades. Part I explores the emergence of a Confucian legal tradition in China and its impact on Chinese legal culture before the founding of the PRC. Part II highlights some of the impacts of this tradition on the Chinese legal system during the same period. Part III makes a case for the endurance of the Confucian essence of this legal tradition in the PRC itself, and …

Only One Mekong: Developing Transboundary Eia Procedures Of Mekong River Basin, Jian Ke, Qi Gao

Pace Environmental Law Review

China shares borders with fourteen countries and has many international rivers. In most cases, China is an upstream state. Over the past years, increasing international disputes concerning international rivers have occurred between China and other riparian states, such as China’s dam construction on the upper Mekong River and the Songhua River pollution accident. In particular, with the ongoing dam construction on the upstream of Mekong in China, its potential environmental impact on the other Mekong countries is highly profiled. At the time of writing, five dams are already completed and two are in the final stage of construction or getting …

Vara’S Orphans: How Indigenous Artists Can Still Look For Hope In The Moral Rights Regime, Amy Skelton

Indiana Journal of Law and Social Equality

No abstract provided.

Pesticide Regulation Differences Of The U.S., Chile, And Mexico On Imported Berries, Kayla Felicia Gardener

Agribusiness

Growing consumer demand for knowledge in the area of food safety and producer accountability on what is applied to fresh produce is resulting in a greater need for transparency in the industry. Additionally, the demand for safe, fresh produce year round has led to extensive international trade and consumers to wonder if imported produce is of the same quality of that in produced in the U.S. The study analyzes the differences and similarities between pesticide application tolerance standards, and labels for applied use on berries produced in the U.S., Mexico, and Chile. This is done by reviewing tolerance information and …

Beijing Municipal Regulation To Reward And Protect Persons Of Courageous Behavior, Annamarie C. Larson, Melody W. Young

Washington International Law Journal

The Beijing Municipal Regulation to Reward and Protect Persons of Courageous Behavior was enacted on April 21, 2000, and has been in force since August 1, 2000. This translation serves as a source of reference for context on the similar emerging legislation in Guangdong province. The translation is based on Beijing Municipal People’s Congress Standing Committee Bulletin No. 21.

Guangdong Province Regulation To Reward And Protect Persons Of Courageous Behavior, Annamarie C. Larson, Melody W. Young

Washington International Law Journal

The Guangdong Province Regulation to Reward and Protect Persons of Courageous Behavior emerged after the Foshan hit-and-run incident in 2011. This translation serves as a source of reference on the newly enacted legislation. The regulation was enacted on November 29, 2012 and is now in effect as of January 1, 2013. This translation is based on Bulletin No. 89 issued December 20, 2012 by the 11th Standing Committee of the People’s Congress of Guangdong Province.

Gene Patents In Australia: A Game Theory Approach, Kate M. Mead

Washington International Law Journal

Gene patent validity is one of the most controversial issues in patent law. In Australia, the question of whether to eliminate human gene patents has reached both Parliament and the federal courts. Opponents of gene patents argue that gene patents increase the cost of healthcare and impede progress in genetic research. Proponents respond that gene patents are essential incentives for the biotech industry, and that Australia has an obligation to recognize them under the WTO-administered Treaty on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). Because patents require inventors to publically disclose their discoveries, Australia’s rejection of the gene patent system …

The Aftermath Of Peng Yu: Restoring Helping Behavior In China, Melody W. Young

Washington International Law Journal

Can money motivate heroic deeds? China believes so. After Xu XX v. Peng Yu developed a poor judicial precedent that lowered the evidentiary bar for plaintiffs in a personal injury claim, the media’s focus on the controversial reasoning of the case created public fear of civil liability. High-profile media attention on similar events that followed reinforced the fears that the Peng Yu case engendered and chilled helping behavior in China. Yet, a tragic hit-and-run accident involving a two-year-old child in Foshan, China reinvigorated the discourse on the restoration of helping behavior in China. Guangdong Province proposed new legislation to counteract …

Marriage Is Between A Man And A Woman And . . . : Latest Evolution Of Marital Residence Regime In Contemporary China, Yu Di

Chicago-Kent Law Review

This Note discusses the controversial August 2011 Judicial Interpretation on the Marriage Law of China concerning the treatment of marital residence in divorce proceedings. The Interpretation gives great weight to the title under which the property is held, and commentators have criticized this approach as unfair to women. This Note examines the Interpretation from a historical and comparative viewpoint. Section I traces the development history of Chinese law of marital property. Section II summarizes the U.S. law on the most prominent scenario addressed by the new Interpretation, that of the distribution at divorce of a marital residence to the acquisition …

Mexico's Missed Opportunities To Protect Irregular Women Transmigrants: Applying A Gender Lens To Migration Law Reform, Alyson L. Dimmitt Gnam

Washington International Law Journal

Mexico is a transit country for hundreds of thousands of migrants traveling north. Due to economic liberalization, women increasingly migrate in search of employment opportunities, a phenomenon called the “feminization of migration.” As women migrate, they face high risks of sexual and gender-based violence, including sexual assault, rape, kidnapping, and trafficking. During transit, the impunity of organized criminal groups and corrupt state officials facilitate rampant abuse of women. Mexico’s former migration policy exacerbated women’s vulnerability to abuse by criminal organizations by pushing women into dangerous illicit migration channels. In response to the abuse of transmigrants, Mexico passed a sweeping migration …

The Role Of Courts In "Making" Law In Japan: The Communitarian Conservatism Of Japanese Judges, John O. Haley

Washington International Law Journal

Professor Haley is an outstanding international and comparative law scholar, widely credited with having popularized Japanese legal studies in the United States. In 1969, Haley received a fellowship from the University of Washington and was in one of the first classes to graduate from the Asian Law Program, now, the Asian Law Center. After working for several years in law firms in Japan, he joined the law faculty at the University of Washington, where he remained for nearly twenty-six years during which time he directed the Asian and Comparative Law Program. In June 2012, Professor Haley was awarded The Order …

Layers Of The Law: A Look At The Role Of Law In Japan Today, Andrew M. Pardieck

Washington International Law Journal

In 1967, Professor Kawashima wrote about a world of vaguely defined rights and norms in Japan. This article argues that world still exists. But it now co-exists with a world that commonly defines rights, in great detail, and regularly invokes them. There are layers of the law in Japan. Primary ordering of relationships and services is often based on complex, legalistic contracts and regulation; secondary ordering is often based on equity, Japanese notions of equity. Examples from contract, employment, and environmental law and practice illustrate this. For each, this paper examines both sides of the coin—transactional ordering and litigated outcomes. …

Uncertainty As Enforcement Mechanism: The New Expansion Of Secondary Copyright Liability To Internet Platforms, John Blevins

Cardozo Law Review

This Article examines the role that legal uncertainty plays as a copyright enforcement mechanism against Internet platforms. In recent years, Internet platforms have faced a new wave of copyright enforcement actions arising from their users' activity. These actions include both civil secondary liability claims and public enforcement actions such as domain name seizures and criminal prosecution. In these enforcement actions, content owners understandably prefer broad secondary liability standards, but these standards remain subject to statutory and doctrinal constraints such as the DMCA safe harbor. Copyright owners, accordingly, are attempting to increase the breadth and expense of secondary copyright liability for …

Capital Structure, Creditor Composition, And Insolvency Law In Japan, Benjamin T. Jones

Washington International Law Journal

This article identifies potential relationships between the methods by which large firms in the business sector are externally financed and creditors’ determinations to resolve business failure through private negotiation or formal insolvency proceedings. Prior to the deregulation of Japan’s capital markets in the 1980s, large firms relied heavily on bank debt as a source of external capital. Consequently, their capital structures and their creditor compositions were relatively homogenous. Japanese banks appeared to primarily resolve the failure of their borrowers through private reorganizations or liquidations rather than court proceedings, and evidence suggests that creditor homogeneity was a favorable condition for the …

Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan, Shigenori Matsui

Washington International Law Journal

The Supreme Court of Japan, despite its well-known passive and conservative stance towards constitutional adjudication, occasionally shows quite a creative and liberal attitude. Recently, the Supreme Court of Japan has shown this attitude in its development of pro-consumer jurisprudence involving consumer loan cases. This development is still more noteworthy because the Supreme Court of Japan ignored the legislature’s intent to overturn its previous judgments and practically wiped out a statutory provision enacted by the legislature. As a result of this development, millions of consumers could demand refunds from consumer loan companies, and consumer loan companies went into serious financial troubles, …