Comparative and Foreign Law Commons^™

Contractualism In The Law Of Treaties, Omar M. Dajani

Michigan Journal of International Law

When Henry Sumner Maine famously observed that "the movement of the progressive societies has hitherto been a movement from Status to Contract," he was invoking contract not as a device for binding parties to their commitments but, rather, as a metaphor for freedom. That metaphor lies at the heart of what legal scholars have come to call contractualism (or, sometimes, contractarianism)-the idea that people should be free to decide with whom, for what, and on which terms they enter agreements and that the law should minimize the constraints it places on these decisions. It is a proposition rooted in the …

A Monolithic Threat: The Anti-Sharia Movement And America’S Counter-Subversive Tradition, Ross Johnson

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Brigham-Kanner Property Rights Conference Journal, Volume 1, William & Mary Law School

Brigham-Kanner Property Rights Journal

Comparative Property Rights

October 14-15, 2011

Panel 1: Legal Protection of Property Rights: A Comparative Look

Panel 2: Reflections on Justice O'Connor's Important Property Rights Decisions

Panel 3: Property as an Instrument of Social Policy

Panel 4: Culture and Property

Panel 5: Property as an Economic Institution

Panel 6: Property Rights and the Environment

A New Prescription To Balance Secrecy And Disclosure In Drug-Approval Processes, Gerrit M. Beckhaus

University of Michigan Journal of Law Reform

To obtain approval to market a drug, a manufacturer must disclose significant amounts of research data to the government agency that oversees the approval process. The data often include information that could help advance scientific progress, and are therefore of great value. But current laws in both the United States and Europe give secrecy great weight. This Article proposes an obligatory sealed-bid auction of the sensitive information based on the experience with similar auctions in mergers and acquisitions, to balance manufacturers' interest in secrecy and the public interest in disclosure.

Checkpoint Watch: Bureaucracy And Resistance At The Israel/Palestinean Border, Irus Braverman

Journal Articles

This essay sketches my personal impressions of the changes that have occurred over the last decade in Israeli checkpoints in and around Jerusalem. These changes are both in the physical design of the checkpoints as well as in their human management. My particular focus is on the women’s human rights organization MachsomWatch. The role of MachsomWatch has changed in a way that parallels the solidification and the bureaucratization of the border. Nowadays, MachsomWatch women - originally avid protestors of the Israeli occupation of the West Bank - have, despite themselves, become a routine feature in the occupational apparatus. This essay’s …

Adopting Law Firm Management Systems To Survive And Thrive: A Study Of The Australian Approach To Management-Based Regulation, Susan Saab Fortney, Tahlia Gordon

Faculty Scholarship

In Australia, amendments to the Legal Profession Act require that incorporated legal practices (ILPs) take steps to assure compliance with provisions of the Legal Profession Act 2004. Specifically, the legislation provides that the ILP must appoint a legal practitioner director to be generally responsible for the management of the ILP. The ILP must also implement and maintain “appropriate management systems" to enable the provision of legal services in accordance with the professional obligations of legal practitioners. Because the new law did not define “appropriate management systems” (AMS) the Office of Legal Services Commissioner for New South Wales worked with representatives …

Contract Law In A Comparative Perspective, Suharnoko Suharnoko

Indonesia Law Review

Media reports on cases of the theft of pre-paid pulses taking place nowadays have created a misunderstanding in terms of the appropriate application of criminal law. In the context of existing legal provisions concerning consumer protection as set forth both under the Consumer Protection Law as well as in part under the Telecommunications Law, law enforcement agencies are leaning towards applying general criminal provisions (theft) which, after a careful observation of the Indonesian Criminal Code, in fact do not extend to corporate criminal acts. This paper purports to explain that the currently occurring cases of the theft of pre-paid pulses …

Price-Fixing: Hefty Penalties On Big-Biz Cartels Will Provide Level Playing Field To Small Businesses, John M. Connor, Robert H. Lande

All Faculty Scholarship

Cartels are illegal in India, as they are almost everywhere. They are subject to heavy fines. Why, then, do businesses frequently try to fix prices? Because doing so usually is profitable. On average cartels raise prices by more than 20%, and probably face less than a 25% chance of being caught and convicted. Based upon a sample of 75 international cartels, the authors calculate that the expected profits from price fixing almost always exceed the penalties. No wonder businesses often try to fix prices.

Consumer Choice As The Best Way To Describe The Goals Of Competition Law, Robert H. Lande

All Faculty Scholarship

This article is both a short introduction to the Consumer Choice explanation for Competition Law or Antitrust Law, and also a short advocacy piece suggesting that Consumer Choice is the best way to articulate the goals of European Competition Law and United States Antitrust Law.

This article briefly:

1. defines the consumer choice approach to antitrust or competition law and shows how it differs from other approaches;
2. shows that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice;
3. shows that the United States antitrust case law embodies a concern for optimal levels of consumer …

Danbury Hatters In Sweden: An American Perspective Of Employer Remedies For Illegal Collective Actions, César F. Rosado Marzán, Margot Nikitas

All Faculty Scholarship

The European Court of Justice's ("ECJ") Laval quartet held that worker collective actions that impacted freedom of services and establishment in the E.U. violated E.U. law. After Laval, the Swedish Labor Court imposed exemplary or punitive damages on labor unions for violating E.U. law. These cases have generated critical discussions regarding not only the proper balance between markets and workers’ freedom of association, but also what should be the proper remedies for employers who suffer illegal actions by labor unions under E.U. law. While any reforms to rebalance fundamental freedoms as a result of the Laval quartet will have to …

Creating Access To Quality Legal Representation – The Queen's Counsel (Re)Appears In Singapore, Kwan Ho Lau

Research Collection Yong Pung How School Of Law

Litigants coming up against a large banking institution or corporation in Singapore have not always been able to procure quality legal representation. The larger law firms there, with their established dispute resolution practices and stables of Senior Counsel, are often unable or unwilling to act in litigation against their institutional clients. This article investigates the extent of the problem and the Ministry of Law’s soluion of easing the criteria for ad hoc admission of Queen’s Counsel in Singapore. The author then looks, in some detail, at the factors that a court might consider in any foreign lawyer’s application for admission. …

Punishment And Work Law Compliance: Lessons From Chile, César F. Rosado Marzán

All Faculty Scholarship

Workplace law activists and reformers find it increasingly more difficult to obtain redress for violation of workers’ rights. Some of them are calling for stricter enforcement and tougher penalties to bring employers into compliance. However, after seven and half months of participant observation at the Labor Directorate and the labor courts of Chile, institutions that use punishment as their main tools of enforcement, I am skeptical about the likelihood of success of mere punishment for effective workplace law enforcement and compliance. I am skeptical even though Chile is a country recognized as the Latin American “jaguar” for its successful economy …

“Advancing With The Times: Industrial Design Protection In The Era Of Virtual Migration”, Horacio E. Gutiérrez

IP Theory

No abstract provided.

The Political Economy Of China’S Regulatory State: A Reappraisal, Miron Mushkat, Roda Mushkat

Brigham Young University Journal of Public Law

No abstract provided.

Surging Intercountry Adoptions In Africa: Paltry Domestication Of International Standards, Joseph M. Isanga

Brigham Young University Journal of Public Law

No abstract provided.

The Importance Of Constitution-Making, David Landau

Scholarly Publications

In this short invited contribution, I argue that scholars and policy-makers need to shift focus from the moment at which the break with the old regime occurs towards the moment at which new constitutional orders are constructed. The constitution-making process in countries like Tunisia, Egypt, and Libya, for example, is likely to determine in large measure what these new regimes are likely to look like. In particular, I draw off of a case study of the 2009 military coup in Honduras, which was provoked by ex-President Zelaya’s attempt to call a constituent assembly, to make two points. First, both constitutional …

Will The Birds Stay South? The Rise Of Class Actions And Other Forms Of Group Litigation Across Latin America, Manuel A. Gómez

University of Miami Inter-American Law Review

No abstract provided.

Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong

Faculty Publications

This article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.

Meaningless Comparisons: Corporate Tax Reform Discourse In The United States, Omri Y. Marian

UF Law Faculty Publications

This article examines the role that international comparisons play in current corporate tax reform discourse in the United States. Citing the need to make the U.S. corporate tax system more competitive, comparisons are frequently used to assess other jurisdictions' tax-competitiveness, and many legislative proposals are supported by such comparative arguments. Examining such discourse against the background of several theoretical approaches to comparative law, this article argues that, to the extent that comparisons are aimed at providing guidance for prospective reform, this purpose is not well served. Participants in the corporate tax reform discourse, from both sides of the aisle, lack …

Public Interest Litigation In India As A Paradigm For Developing Nations, Zachary Holladay

Indiana Journal of Global Legal Studies

Public interest litigation (PIL) in India can serve as a vehicle for creating and enforcing rights and is critical to the sustenance of democracy. PIL in India can address the needs of its citizens when legislative inertia afflicts the Indian National Congress. This Note discusses how PIL in India can serve as a model for other developing nations struggling with legislative inertia and can provide recourse to marginalized and disadvantaged communities. Furthermore, while PIL obscures the traditional boundaries of power in a liberal democratic polity, democracy is in fact strengthened by the expansion of standing to include any citizen who …

The Burden To Prove Libel: A Comparative Analysis Of Traditional English And U.S. Defamation Laws And The Dawn Of England's Modern Day, Elizabeth Samson

Cardozo Journal of International and Comparative Law

The article examines the divergence between English and U.S. defamation laws, particularly the burden of proof in libel cases. It argues that while the U.S. has evolved to prioritize free speech by shifting the burden to the plaintiff, England maintains a plaintiff-friendly approach, leading to libel tourism and chilling free speech. The author suggests that England should consider reforming its burden of proof to address these issues.

Vertical And Horizontal Perspectives On Rights Consciousness, David M. Engel

Journal Articles

It has become commonplace to assert that rights consciousness is expanding globally and that individuals worldwide demonstrate an increasing awareness of and insistence upon their legal entitlements. To marshal empirical support for such claims is, however, exceedingly complex. One important line of socio-legal research on rights consciousness adopts what might be called a “vertical” perspective, tracing the flow of legal norms and practices from prestigious international organizations and world centers of cultural production to local settings, where they may be adopted, resisted, or transformed. Vertical perspectives on rights consciousness have contributed new understandings of law in contemporary societies around the …

Intellectual Property And Asian Values, Peter K. Yu

Faculty Scholarship

From Niall Ferguson to Fareed Zakaria, commentators have paid growing attention to the rise of Asia and its implications for the West. Recent years have also seen the emergence of a growing volume of literature on intellectual property developments in Asia, in particular China and India. Few commentators, however, have explored whether Asian countries will take unified positions on international intellectual property law and policy.

Commissioned for the Inaugural International Intellectual Property Scholars Series, this article fills the void by examining intellectual property developments in relation to the decades-old 'Asian values' debate. Drawing on the region's diversity in economic and …

Technology As A Driver Within Agencies - The Internet Change Everything, Michael Herz

Articles

No abstract provided.

The Specter Of Civil Law Clawback Actions Haunting U.S. And Uk Charitable Giving, Aaron Schwabach

Law Faculty Scholarship

No abstract provided.

Cisg Translation Issues: Reducing Legal Babelism, Claire M. Germain

UF Law Faculty Publications

The CISG (Convention on Contracts for the International Sale of Goods) has remarkably facilitated commercial transactions across boundaries and different legal systems. This article, to be published as a Book Chapter, discusses some possible difficulties caused by using different languages, or words which might be interpreted differently, and some solutions and ways to deal with these difficulties. Three kinds of issues have appeared: the first has to do with drafting issues, and the peculiar problem of the six official languages of the Convention. The second set of issues deals with the interpretation of the Convention and the so-called homeward trend. …

An Early Tragedy Of Comparative Constitutionalism: Frank Goodnow And The Chinese Republic, Jedidiah Kroncke

Washington International Law Journal

This article recovers a lost episode in the neglected early history of comparative constitutionalism in the United States. In 1913, pioneering comparative lawyer Frank Goodnow went to China to assist the new Chinese Republic in the writing of its first constitution. Goodnow’s mission reflected the growing interest of the United States in China’s legal development in this era, and his constitution-writing project won broad support from the U.S. legal profession. Goodnow’s tenure ultimately generated great controversy when he advised China’s leaders to adopt a constitutional monarchy rather than continue on as a republic. This article describes this controversy and how …

Corporate Liability, Government Liability, And The Fukushima Nuclear Disaster, Eri Osaka

Washington International Law Journal

This article focuses on the liability issues arising from the Fukushima nuclear disaster. The radioactivity released from the Fukushima Dai-ichi Nuclear Power Plant inflicted catastrophic harm to people, industries, and the environment. Under Japanese law, a nuclear operator bears strict, channeling, and unlimited liability for nuclear damage unless the damage is caused by a grave natural disaster of an exceptional character. This article concludes the Great East Japan Earthquake and tsunami that triggered this nuclear accident do not fall within this exemption because neither of them were unforeseeable nor far beyond the design basis for the reactors at the plant. …

Will China's 12th Five Year Plan Allow For Sufficient Nuclear Power To Support Its Booming Economy In The Next Twenty Years?, Patricia Blazey

Washington International Law Journal

A major part of China’s 12th Five Year Plan focuses on energy conservation and environmental protection. Its 12th Year Environmental Plan provides that China will increase its nuclear capacity by 30% from 2010 levels of 10.8 gigawatts to 43 gigawatts in 2014. Two questions arise from this plan. First, will enough energy be produced from other sources to supply the country’s energy needs or will there be the need for an expansion to its nuclear program? Second, are the locations of its nuclear power plants safe in light of the disaster at the Fukushima nuclear power plant in Japan following …

Gender-Specific Prison Reform: Addressing Human Rights Violations Against Women In Russia's Prisons, Courtney M. Skiles

Washington International Law Journal

Russia currently incarcerates women in conditions that amount to human rights violations. Women incarcerated in Russia’s prisons experience not only oppression and abuse common to all those incarcerated in Russia, but also gender-specific harms. While Russia has signed on to many pivotal human rights treaties, it also has a long history of mass incarceration of its people. Today, the prison conditions for women in Russia reveal a need for reform. Reformers are challenged by a powerful State that has not prioritized the type of reform necessary to eliminate further harms done to incarcerated women. To ensure the rights of women …