Comparative and Foreign Law Commons^™

Exporting Standards: The Externalization Of The Eu's Regulatory Power Via Markets, Anu Bradford

Faculty Scholarship

This Article examines the unprecedented and deeply underestimated global power that the EU is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Introducing the notion of “the Brussels Effect,” the Article shows how market forces alone are sufficient to convert EU standards into global standards. Without the need to use international institutions or seek other nations’ cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable “Europeanization” of many …

An Empirical Study Of Arbitrators Acting As Mediators In China, Fan Kun

Cardozo Journal of Conflict Resolution

Whether an arbitrator can and should act as a mediator in a pending arbitration is one of the most controversial issues in international arbitration. While mediation is not a new concept for the West, the practice of having the same person acts as both an arbitrator and a mediator in one proceeding has aroused great debate in theory and practice. The debate gives rise to delicate ethical issues, and touches the very core of arbitration, i.e., the mission of arbitrators.

Section II of the Article reviews relevant literature on the general attitudes of arbitrators in settlement facilitation. Section III defines …

Brazil's Legacy Of International Parental Child Abduction: Mediation Under The Hague Abduction Convention As A Solution, Paula Shulman

Cardozo Journal of Conflict Resolution

This Note argues that Brazil's failures to comply with the commands of the Hague Convention, to expeditiously return children abducted by a parent from their habitual residence to Brazil, can be remedied with the adoption of a new mediation model in lieu of its current system. This new mediation protocol can be modeled on those adopted in the United Kingdom and Germany. Section II of this Note provides a history of IPCA and an analysis of the problems unresolved or springing from the Hague Convention. Section III examines Brazil's accession to the Hague Convention, the Brazilian Central Authority, the body …

Relying On Government In Comparison: What Can The United States Learn From Abroad In Relation To Administrative Estoppel, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.

Limits Of Procedural Choice Of Law, S. I. Strong

Faculty Publications

Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.

Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …

Technology, Ethics, And Access To Justice: Should An Alogrithm Be Deciding Your Case?, Anjanette H. Raymond, Scott J. Shackelford

Michigan Journal of International Law

At a time of U.S. budget cuts, popularly known as the “sequester,” court systems across the nation are facing financial shortfalls. Small claims courts are no exception. Among the worst hit states is California, which is suffering staffing cutbacks that result in long delays prompting consideration of the old maxim, “justice delayed is justice denied.” Similar problems, albeit on a larger scale, are evident in other nations including India where the Law Commission has argued that the millions of pending cases combined with the lagging uptake of technological best practices has impeded judicial productivity, leading to “disappointment and dissatisfaction among …

Protecting Traditional Knowledge In International Intellectual Property Law: Imperatives For Protection And Choice Of Modalities, 14 J. Marshall Rev. Intell. Prop. L. 25 (2014), Tesh Dagne

UIC Review of Intellectual Property Law

The need for protecting traditional knowledge (TK) has been acknowledged in discussion and negotiations under the umbrella of a number of inter-governmental organizations that deal with biodiversity, the environment, indigenous peoples’ rights, human rights, food and agriculture, among others. It has, however, proved difficult to arrive at a consensus on the proper modality that can serve the needs and desires of Indigenous and Local Communities (ILCs) in their economic and cultural participation. The article examines the imperatives for the protection of TK and explores the modalities of TK protection at the international level for regulating the control of, access to …

Adoption And The Limits Of Contract In Victorian Adoption Case Law And George Eliot's Silas Marner, Sarah Abramowicz

Law Faculty Research Publications

No abstract provided.

The Law And Economics Of (Functional) Antitrust Standing In The United States And The European Union, Jeffrey L. Harrison

UF Law Faculty Publications

To date, and despite pressures toward convergence, the United States and the European Union have taken different paths with respect to the enforcement of antitrust laws by private parties and, therefore, differ dramatically in levels of functional standing. U.S. law is more encouraging to private enforcement than E.U. law but has a narrower view of whom those private parties are permitted to be. In the European Union, the eligible parties are broad but the motivation of any single party to bring an action is quite low. In the United States, the substantive law and much of the procedural law flow …

Introduction - Papers From The 2013 American Society Of Comparative Law Annual Meeting, Kenneth S. Gallant, Sarah Howard Jenkins

University of Arkansas at Little Rock Law Review

No abstract provided.

Globalization And Private International Law In Commonwealth Africa, Richard Frimpoong Oppong

University of Arkansas at Little Rock Law Review

No abstract provided.

The Snowden Revelations, The Transatlantic Trade And Investment Partnership And The Divide Between U.S.- Eu In Data Privacy Protection, Ioanna Tourkochoriti

University of Arkansas at Little Rock Law Review

No abstract provided.

Introduction-Papers From The 2013 American Society Of Comparative Law Annual Meeting, Sarah Howard Jenkins, Kenneth S. Gallant

Law Faculty Scholarship

No abstract provided.

An Expanding Human Rights Corpus: Sexual Minority Rights As International Human Rights, Xavier B. Lutchmie Persad

Cardozo Journal of Equal Rights & Social Justice

The article argues that sexual minorities are entitled to equal rights under principles of human dignity, equality, and non-discrimination. While international human rights frameworks like the Universal Declaration of Human Rights (UDHR) and regional systems, particularly the European Union’s Charter of Fundamental Rights, provide some protections, sexual minorities remain vulnerable due to the lack of explicit inclusion in most treaties. The European Court of Human Rights (ECtHR) and the UN Human Rights Committee (HRC) have advanced protections through jurisprudence, but significant gaps persist, especially for transgender and intersex individuals. The article advocates for a specialized treaty to address these disparities …

Competition Law Reform In Turkey: Actors, Networks, Translations, Ziya Umut Turem

Indiana Journal of Global Legal Studies

This article explains the shift from an initially European-oriented and politically motivated competition law, toward a U.S. style and aspiringly apolitical competition regime in Turkey. Translation is used as an analytic to capture the complex processes of such a shift. The article argues that this shift can be explained first by the broad turn toward the U.S. as a source of state expertise and knowledge production in the context of the Cold War. This broad historical dynamic could only be activated, however, by the emergence of a critical mass of policy entrepreneurs and state officials shifting the momentum of policy …

The Persistence Of National Peculiarities: Translating Representative, Anna Katharina Mangold

Indiana Journal of Global Legal Studies

This paper explores representative environmental action in international, European Union, and German environmental law as an example of '7egal translation." The Aarhus Convention, dating from 1998, requests signatory parties to provide environmental NGOs with wide access to justice so that the protection of the environment can be controlled by the judiciary. Both the European Union and Germany have implemented the provisions of the Aarhus Convention into their respective legal orders. This process of implementation can be considered as "legal translations." The argument of this paper is that a perspective of '7egal translation" provides new vistas on the various intertwined layers …

Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen

Faculty Articles and Papers

This Article discusses supreme and constitutional courts’ internal organizational cultures, that is, the way in which justices organize their work and establish informal decision-making norms. Courts of last resort are often presented as exemplary deliberative institutions. The conference meeting, which convenes judges in quiet seclusion to debate, has been glorified as the most significant step in a court’s decision-making process. Based in part on qualitative empirical research, I argue, however, that French, American, and European Justices may not deliberate in the full sense that deliberative democrats have theorized. The Article distinguishes two types of high court deliberations, which I call …

Two Direct Rights Of Action In Child Support Enforcement, Margaret Ryznar

Catholic University Law Review

No abstract provided.

Shaken Baby Syndrome On Trial, Keith A. Findley, Barry Scheck

Articles

This is a short review of Deborah Tuerkheimer's book, "Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice" (Oxford University Press 2014).

Multiculturalism And Constitutionalism In Latin America, José Antonio Aguilar Rivera

Notre Dame Journal of International & Comparative Law

José Antonio Aguilar Rivera discusses recent reforms to the constitutions of several Latin American states. According to Aguilar Rivera, these reforms tend to recognize and protect the multiethnic and multicultural nature of Latin American socieites. While acknowledging that some have lauded these changes as progressive moves towards a more developed form of democracy, Aguilar Rivera reaches the opposite conclusion. He argues that these trends in Latin American constitutionalism represent an "authoritarian regression" rather than an enhancement of democracy. Aguilar Rivera begins by discussing and critiquing prevalent Western theories of multiculturalism, particularly the versions set forth by Canadian theorists Charles Taylor, …

Latin American Constitutionalism: Social Rights And The “Engine Room” Of The Constitution, Roberto Gargarella

Notre Dame Journal of International & Comparative Law

Roberto Gargarella surveys the landscape of Latin American Constitutionalism from 1810 to 2010, with particular emphasis on efforts in the late twentieth and early twenty-first centuries to enhance protections of multiculturalism and human rights. Gargarella begins by surveying the "founding period" of Latin American constitutionalism, a period marked by compromise between liberals and conservatives. He proceeds to discuss the increasing incorporation of social rights—primarily economic and labor rights—during the early twentieth century. Gargarella then discusses a final wave of reforms, which introduced increasing human rights protections in the latter half of the twentieth century and the beginning of the twenty-first. …

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, …

A Reply To "Hollow Spaces", George A. Bermann, Jack J. Coe Jr., Christopher R. Drahozal, Catherine A. Rogers

Faculty Scholarship

This short essay responds to Chip Brower's thoughtful and meticulous critique of Tentative Draft No. 2 of the Restatement Third of the U.S. Law of International Commercial Arbitration. While we appreciate the concerns he raises, we disagree with the conclusions he draws both about the Restatement and the drafting process. We address here what we understand to be Professor Brower's major criticisms of the work.

Corruption, Corporations, And The New Human Right, Andrew B. Spalding

Law Faculty Publications

We should no longer expect the Alien Tort Statute to be the principal federal statute that deters overseas corporate rights violations. That distinction rightly belongs to the Foreign Corrupt Practices Act, an antibribery statute that rests on undisputed principles of corporate liability, contains a clear congressional statement of extraterritorial application, and routinely collects penalties from multinational corporate defendants. Scholars have not associated the FCPA with human rights, owing principally to a thin understanding of rights theory. But freedom from corruption can and should be understood as a human right, one that is as old as social contract theory but new …

Global Experimentalist Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This article outlines the concept of Global Experimentalist Governance (GXG). GXG is an institutionalized transnational process of participatory and multilevel problem solving, in which particular problems, and the means of addressing them, are framed in an open-ended way, and subjected to periodic revision by various forms of peer review in light of locally generated knowledge. GXG differs from other forms of international organization and transnational governance, and is emerging in various issue areas. The Montreal Protocol on ozone-depleting substances is used to illustrate how GXG functions. The conditions for the emergence of GXG are specified, as well as some of …

Defending The Environment: A Mission For The World's Militaries, Mark P. Nevitt

Faculty Articles

Critics often fault the U.S. military for its environmental stewardship, and legal scholarship frequently highlights efforts by the military· to seek national security exemptions from various environmental laws and the military's poor cleanup record Yet the Department of Defense ("DoD '') is largely subject to and complies with the fall array of American environmental laws in the same manner and extent as any agency of the federal government. While the military 's environmental record is far from perfect, a comparative legal survey shows that the U.S. is at the relative forefront of effectively balancing environmental stewardship with national security.

This …

A Prequel To Law And Revolution: A Long Lost Manuscript Of Harold J. Berman Comes To Light, John Witte Jr., Christopher J. Manzer

Faculty Articles

The late Harold Berman was a pioneering scholar of Soviet law, legal history, jurisprudence, and law and religion; he is best known today for his monumental Law and Revolution series on the Western legal tradition. Berman wrote a short book, Law and Language, in the early 1960s, but it was not published until 2013. In this early text, he adumbrated many of the main themes of his later work, including Law and Revolution. He also anticipated a good deal of the interdisciplinary and comparative methodology that we take for granted today, even though it was rare in the …

The Environmental Limitations To Property Rights In Brazil And The United States Of America, Leonardo Munhoz

Dissertations & Theses

This thesis aims to comparatively analyze the legislative evolution that environmental protection has experienced in the Brazilian versus the American legal systems and their relationship with property rights.

Demonstrably, Brazil’s concern with the environment actually came into focus in the 1980s and it therefore received treatment within the Federal Constitution of 1988, as a diffuse right, contributing to better, stronger environmental protection.

Similarly, the protection of the environment in the American Constitution and its statutes as well as their enforcement and interpretation within the legal system are explored.

Of concern is the notion that environmental protection and third-generation rights consequently …

'Quack Corporate Governance' As Traditional Chinese Medicine – The Securities Regulation Cannibalization Of China's Corporate Law And A State Regulator's Battle Against Party State Political Economic Power, Nicholas C. Howson

Articles

From the start of the People’s Republic of China’s (PRC) “corporatization ” project in the late 1980s, a Chinese corporate governance regime subject to increasingly enabling legal norms has been determined by mandatory regulations imposed by the PRC securities regulator, the China Securities Regulatory Commission (CSRC). Indeed, the Chinese corporate law system has been cannibalized by all - encompassing securities regulation directed at corporate governance, at least for companies with listed stock. This Article traces the path of that sustained intervention and makes a case — wholly contrary to the “quack corporate governance” critique much aired in the United States …