Comparative and Foreign Law Commons^™

Right Of Publicity Licensing In A New Age: No Doubt V. Activision Publishing, Inc., Marta Baffy

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Transcending Cultural Nationalist And Internationalist Tendencies: The Case For Mutually Beneficial Repatriation Agreements, Joshua S. Wolkoff

Cardozo Journal of Conflict Resolution

This Note will proffer a critical evaluation of the Italian government's current tactics for reclaiming its patrimony and argue that MBRAs are the most desired framework for resolving repatriation disputes, as they give rise to lasting collaborative relationships between source nations and cultural institutions and strive to keep valued works in the "public trust" without diminishing traditionally insular cultural identities. Thus, successful negotiations must account for competing interests including, inter alia: (i) the emotional currency of the object as assessed from the perspective of the source nation; (ii) the institution's desire to keep disputed works within the public sphere; (iii) …

A Typology Of Consensual Criminal Procedures: An Historical And Comparative Perspective On The Theory And Practice Of Avoiding The Full Trial, Stephen C. Thaman

All Faculty Scholarship

In the words of Clifford Geertz, this chapter engages in “an exercise of intercultural translation” in order to understand the reality of plea bargaining and other forms of consensual resolution of criminal cases. It provides a history of consensual and alternative forms of criminal procedure around the world. It also provides a comprehensive discussion on alternatives to a full trial in modern penal systems and issues that arise with those alternatives.

'Fruits Of The Poisonous Tree' In Comparative Law, Stephen C. Thaman

All Faculty Scholarship

This article gives a brief review of the types of exclusionary rules articulated in modern codes, constitutions, and jurisprudence, and explores how these rules are interpreted when excluding the derivative “fruits” of constitutional violations of the right to silence and human dignity during police interrogations and the right to privacy in one’s home and confidential communications. It shows, whether a country begins with a seemingly airtight categorical exclusionary rule for serious constitutional violations, or allows judges great discretion in deciding whether to use fruits of unconstitutional police behavior, the search for truth has largely triumphed over constitutional rights. As a …

Isu-Isu Pemelukan Islam Menurut Undang-Undang Negara Brunei Darussalam., Muhammad Bahrin Haji Alias

Student Works (2010-2019)

The number of conversion to Islam cases in Brunei Darussalam has arisen yearly. However, due to incompetency or legal infrastructure, any issue relating to the conversion cases, could not be handled and administered efficiently. Such weakness in legal aspect has affected the court‟s reputation and sometimes conflicts especially Syariah Court to discharge their duty effectively. Therefore, the aim of this study is to identify and discuss to what extent current legal structures able resolve cases relating to conversion to Islam. To achieve this, the research is enhanced by the library research and field study in order to obtain relevant data. …

A Common Lawyer’S Perspective On The European Perspective On Punitive Damages, Michael Wells

Scholarly Works

Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems. This paper argues that the main reasons for the difference are historical and cultural. Roman law and the French Revolution heavily influenced the civil law. Civilians were taught that legal development comes from the top down. They learned to treat law as a system of general principles and to resist anomalies. They found it relatively easy to reject the intrusion of criminal themes into private law. The common law developed one case at a time, with no particular emphasis on systematic coherence. It was …

Why Cherry Picking Never Leads To Harmonisation: The Case Of The Limitations On Copyright Under Directive 2001/29/Ec, Lucie Guibault

Articles, Book Chapters, & Popular Press

The article examines whether the norms laid down in the Directive in relation to the exceptions and limitations on copyright and related rights can be conducive to a sensible degree of harmonisation across the European Union. Before discussing the degree of harmonisation achieved so far by the Directive, the first part gives a short overview of the main characteristics of the list of exceptions and limitations contained in Article 5 of the Directive. A comprehensive review of the implementation of each limitation by the Member States is beyond the scope of this article. The following section takes a closer look …

Teaching International Law: Lessons From Clinical Education: Introductory Remarks, Richard J. Wilson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Comparative Law: Problems And Prospects, David Snyder

Scholarly Articles in Law Reviews & Journals

The following is an edited transcript of the closing plenary session of the XVIIIth International Congress of Comparative Law. The session took place on Saturday, July 31, 2010, in Washington, D.C., at the conclusion of the week-long congress, which is held quadrennially by the International Academy of Comparative Law (Académie Internationale de Droit Comparé). The remarks were given in a mix of French and English, but for ease of reading the transcript below is almost entirely in English.

Special 301 And Access To Medicine In The Obama Administration, Sean Flynn

Scholarly Articles in Law Reviews & Journals

I. Introduction

This article examines the history and current use of the Special 301 program to restrict access to generic medicines in developing countries, specifically the 2009 and 2010 reports released under the Obama Administration. The news for access to medicines advocates is not good overall. Both reports continue the previous Administration’s policies of using Special 301 to promote Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) policies (“TRIPS-plus”) endangering access to medicines for millions of people worldwide. These policies violate not only the Obama Administration’s pledges to promote access to affordable medications in developing countries, but also U.S. commitments under …

Family Law Exceptionalism In Comparative Law, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

Today, family law is, to a surprising degree, at the center of comparative law inquiries committed to legal unification. Comparative family law projects range from analyzing convergence and harmonization proposals in the West, to law and development schemes in the rest of the world. The most salient reforms of abortion, same-sex marriage, transsexual, and adoption rights are increasingly promoted at the transnational level through international human rights and antidiscrimination principles. Regional and international human rights tribunals in Europe and Latin America are called upon to interpret the right to family life, non-discrimination, and freedom of movement principles to redefine the …

The Merits Of ‘Merits’ Review: A Comparative Look At The Australian Administrative Appeals Tribunal, Jeffrey Lubbers, Michael Asimow

Scholarly Articles in Law Reviews & Journals

This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal (AAT), a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation (the Tribunals, Courts and Enforcement Act) merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. …

Why Did China Reform Its Death Penalty?, Kandis Scott

Faculty Publications

China recently reformed its death penalty laws, and as a result the government has executed fewer prisoners. The author explores possible reasons and policy concerns behind China's legal reform. These influences include international forces and domestic factors, such as the media, changed circumstances, compassion, and politics. Although hardly transparent, the underlying motivations for the revisions suggest that eventually China may abolish capital punishment, perhaps even before the United States does so.

A Closer Look At Law: Human Rights As Multi-Level Sites Of Struggles Over Multi-Dimensional Equality, Susanne Baer

Articles

In many societies, deep conflicts arise around religious matters, and around equality. Often, religious collectives demand the right to self-determination of issues considered - by them - to be their own, and these demands collide with individual rights to, again, religious freedom. These are thus conflicts of religion v. religion. Then, collective religious freedom tends to become an obligation for all those who are defined as belonging to the collective, which carries the problem that mostly elites define its meaning and they silence dissent. Usually, such obligations are also unequal relating to gender, with different regimes for women and for …

Methodological Challenges In Comparative Constitutional Law, Vicki C. Jackson

Georgetown Law Faculty Publications and Other Works

My talk today, Methodological Challenges in Comparative Constitutional Law, has two parts. The first part focuses on the relationship between the purposes of comparison and the methodological challenges of comparison. The second part asks whether there are particular methodological challenges in comparative constitutional law as compared with other comparative legal studies.

Provoking Change: Comparative Insights On Feminist Homicide Law Reform, Carolyn B. Ramsey

Publications

The provocation defense, which mitigates murder to manslaughter for killings perpetrated in the heat of passion, is one of the most controversial doctrines in the criminal law because of its perceived gender bias; yet most American scholars and lawmakers have not recommended that it be abolished. This Article analyzes trendsetting feminist homicide law reforms, including the abolition of the provocation defense in three Australian jurisdictions, places these reforms in historical context, and assesses their applicability to the United States. It ultimately advocates reintroducing the concept of justified emotion, grounded in modern equality principles and social values, as a requirement for …

Securities Class Actions Move North: A Doctrinal And Empirical Analysis Of Securities Class Actions In Canada, A. C. Pritchard, Janis P. Sarra

All Faculty Publications

The article explores securities class actions involving Canadian issuers since the provinces added secondary market class action provisions to their securities legislation. It examines the development of civil liability provisions, and class proceedings legislation and their effect on one another. Through analyses of the substance and framework of the statutory provisions, the article presents an empirical and comparative examination of cases involving Canadian issuers in both Canada and the United States. In addition, it explores how both the availability and pricing of director and officer insurance have been affected by the potential for secondary market class action liability. The article …

China's Judicial System And Judicial Reform, Nicholas C. Howson

Other Publications

The following is an extract from the statement delivered by Michigan Law School Professor Nicholas Howson at the inaugural “China-U.S. Rule of Law Dialogue” held at Beijing’s Tsinghua University July 29-30, 2010, and convened by Tsinghua Law Dean Wang Zhenmin and Harvard Law School Professor and East Asian Legal Studies Director William Alford, and with the support of the China-United States Exchange Foundation chaired by C.H. Tung, first chief executive and president of the Executive Council of the Hong Kong Special Administrative Region. The dialogue was organized as a private meeting between senior PRC law professors and U.S.-based Chinese law …

The Basic Law At 60 - Introduction To The Special Issue, Susanne Baer, Christian Boulanger, Alexander Klose, Rosemarie Will

Articles

For Germany 2009 was a year of constitutional anniversaries: the first democratic constitution (Paulskirchenverfassung of 1849) was promulgated 160 years ago; the 1919 Weimar Constitution would have turned 90; and finally, the country celebrated 60 years of the Basic Law, which was proclaimed and signed in Bonn on 23 May 1949. Despite its birth in the midst of economic and political turmoil and widespread disillusion with politics, the Basic Law has come to be regarded as a "success story." As is well known, it was never meant to last - the very term "Grundgesetz" (basic law) indicated that it was …

Can Islamizing A Legal System Ever Help Promote Liberal Democracy: A View From Pakistan, Clark B. Lombardi

Articles

Over the past twenty-five years, academics in Europe and the United States have written a great deal about the relationship between Islam and democracy, and between Islam and human rights. This scholarship often fails to acknowledge or take into account similar debates that occurred earlier during a period of decolonization. This article discusses the work of a Christian judge who served on the Supreme Court of Pakistan. This judge, A.R. Cornelius, was a famous Cambridge-educated legal liberal who courageously tried in the 1950s and 60s to protect human rights as Pakistan came under martial rule. Cornelius came to argue shockingly …

The Evolution Of The Italian And U.S. Bankruptcy Systems: A Comparative Analysis, Paolo Manganelli

Journal of Business & Technology Law

No abstract provided.

Comparative Perspectives On Specialized Trials For Terrorism, Sudha Setty

Faculty Scholarship

On the campaign trail in 2008, presidential candidate and then-Senator Barack Obama promised to restore America’s place in the world by breaking with many of the national security policies put into effect by President George W. Bush. In January 2009, President Obama made numerous changes to United States foreign policy, including signing an executive order to close the prison at Guantanamo Bay, Cuba and announcing that the United States would not engage in interrogation techniques that constitute torture. In some respects, however, Obama has followed the example of President Bush - for example, in his resuscitation of a specialized military …

The Rule Of Law Unplugged, Daniel B. Rodriguez, Mathew D. Mccubbins, Barry R. Weingast

Faculty Scholarship

The "Rule of Law" is a venerable concept, but, on closer inspection, it is a complex admixture of positive assumptions, inchoate political and legal theory, and occasionally wishful thinking. Although enormous investments have been made in rule of law reformism throughout the world, advocates of transplanting American-style legal and political institutions to developed and developing countries are often unclear about what they are transplanting and why they are doing so. The concept of rule of law has become unplugged from theories of law. Scholars clearly have more work to do in understanding the rule of law and designing institutions to …

Bringing Our Kids Home: International Parental Child Abduction & Japan's Refusal To Return Our Children, Robin S. Lee

Cardozo Journal of Equal Rights & Social Justice

The note examines Japan's refusal to ratify the Hague Convention on the Civil Aspects of International Child Abduction, highlighting how this decision creates a legal haven for parental child abductions. It explores the cultural, legal, and systemic factors in Japan that facilitate these abductions and the challenges faced by foreign parents in retrieving their children. The note also discusses potential solutions and international efforts to pressure Japan into adhering to the Convention.

Rise Of Political Populism And The Trouble With The Legal Profession In China, Dongsheng Zang

Articles

This essay looks into recent efforts by the ruling party in China to tighten control of the judiciary, the lawyers and prosecutors under the slogan of "harmonious society" in the last couple of years. This reversed the direction of judicial reform under the leadership of Xiao Yang, during his tenure as President of the Supreme People's Court before 2008. The trouble with the legal profession in China, the essay asserts, is not only that it loses its professional autonomy thus its ability to act as a sociopolitical force that is independent from the ruling political party; but also, by virtue …

Policymaking By The Japanese Judiciary In The Criminal Justice Field, Daniel H. Foote

Articles

When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and …

Explanation Interpretation In Functionalist Comparative Law — A Response To Julie De Coninck, Ralf Michaels

Faculty Scholarship

Response to Julie de Coninck, The Functional Method of Comparative Law: Quo Vadis?, 74 Rabels Zeitschrift für ausländisches und internationales Privatrecht 318–350 (2010) in which De Coninck criticizes existing functionalist comparative law for what she perceives as lack of interest in empirical foundations.

Slums, Slumdogs, And Resistance, Tayyab Mahmud

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Changing Media, Changing Courts, Benjamin L. Liebman

Faculty Scholarship

This chapter examines court-media relations in China and argues that such relations are increasingly a two-way street. Media coverage is forcing the courts to act more carefully — and perhaps fairly. But pressure from the courts is also resulting in greater attention to factual reporting and professional standards in the media. This interactive relationship reflects the position of the courts and media as institutions competing for authority within the Chinese political system. It also suggests that there is significant room for ground-up development of both media and the courts.

The first section discusses the growth of media coverage of legal …

Individualized Service Provision In The New Welfare State: Lessons From Special Education In Finland, Charles F. Sabel, Annalee Saxenian, Reijo Miettinen, Peer Hull Kristensen, Jarkko Hautamäki

Faculty Scholarship

The essay is four parts. Part 2 sets out the theoretical frame of the argument. It explains briefly why social solidarity increasingly depends on the provision of capacitating or enabling circumstances; why those services must increasingly be adapted to individual needs to be effective; and what is organizationally problematic (from the point of view of current theories of organization) about the success of countries such as Finland, Denmark and the US in delivering these services. It sketches two paths — a Nordic way, building on traditional professions, and a roundabout, US way, re-building broken bureaucracies originally intended as substitutes for …