Comparative and Foreign Law Commons^™

Analytical Jurisprudence And The Concept Of Commercial Law, John Linarelli

Scholarly Works

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond …

Competition Policy And Comparative Corporate Governance Of State-Owned Enterprises, D. Daniel Sokol

UF Law Faculty Publications

The legal origins literature overlooks a key area of corporate governance—the governance of state-owned enterprises ("SOEs"). There are key theoretical differences between SOEs and publicly-traded corporations. In comparing the differences of both internal and external controls of SOEs, none of the existing legal origins allow for effective corporate governance monitoring. Because of the difficulties of undertaking a cross-country quantitative review of the governance of SOEs, this Article examines, through a series of case studies, SOE governance issues among postal providers. The examination of postal firms supports the larger theoretical claim about the weaknesses of SOE governance across legal origins. In …

Challenging Monohumanism: An Argument For Changing The Way We Think About Intercountry Adoption, Shani M. King

UF Law Faculty Publications

The Convention on the Rights of the Child' (CRC) provides a legal framework that establishes a child's right to be raised in the context of her family and her culture. We regularly violate this most fundamental right of children because we fail to come to terms with our imperialist orientation toward the world. This failure has been caused, in part, by how we have constructed our way of thinking about intercountry adoption. We now have a conception of intercountry adoption that I refer to in this Article as MonoHumanism. In the context of intercountry adoption, MonoHumanism means that children …

Victims Of Armed Conflict And Persecution In South Africa: Between A Rock And A Hard Place, Edwin Odhiambo Abuya, Dulo Nyaoro

UC Law SF International Law Review

This paper examines the extent to which African States have cemented their commitments to protect persons forced to flee from their home states owing to armed conflict and/or persecution. Using South Africa as a case study, this paper examines the experience of refugees and asylum seekers at the hands of South African Police. Two central issues are, first, the identity documents that are issued to asylum seekers and refugees coming to South Africa, and second, the constitutional rights to privacy and security, which are promised to all. It is contended that although law enforcement officials are generally required by law …

Beyond Corporate Social Responsibility: Reconciling The Ideals Of A For-Benefit Corporation With Director Fiduciary Duties In The U.S. And Europe, Alissa Mickels

UC Law SF International Law Review

Traditionally, organizations are divided into three sectors: for-profit, non-profit, and the government. Over the past few decades, a new Fourth Sector of organizations has been emerging in the U.S. and abroad. These "Fourth Sector" organizations attempt to integrate social purposes with business methods as seamlessly as possible. A few social entrepreneurs take a more ambitious approach to this "hybrid" approach and are creating For-Benefit corporations that, in addition to integrating social purposes with business methods, adopt a corporate policy to benefit all stakeholders, require inclusive governance and ownership, accountability, and transparency. Will the law allow these For-Benefit corporations to benefit …

Eight Perspectives On Yvon Neptune V. Haiti, Jens Iverson

UC Law SF International Law Review

Yvon Neptune v. Haiti is a noteworthy decision of the Inter- American Court of Human Rights, with potentially wide-ranging impacts. The Court ordered a wholesale change in the Haitian prison system in order to prevent Haiti from violating former Haitian Prime Minister Yvon Neptune's rights again. Haiti violated Articles 1 (obligation to respect rights), 5 (humane treatment), 7 (personal liberty), 8 (fair trial) and 25 (the right to judicial protection) of the American Convention on Human Rights. Haitian and U.S. human rights groups worked together with a "virtual" human rights clinic to trigger the decision by filing a petition with …

Introduction - Recent Events In Gaza, Rose Mishaan

UC Law SF International Law Review

No abstract provided.

It's Just Business, Or Is It: How Business And Politics Collide With Sovereign Wealth Funds, Matthew Saxon

UC Law SF International Law Review

Over the past few years, sovereign wealth funds have played an increasingly important role in the global financial system. This note seeks to shed light on the foreign investment vehicles known as sovereign wealth funds (SWF's). In the first section I will explain what a sovereign wealth fund is; why regulators in the U.S. and European have recently become concerned with them; and how SWF's have reacted to these concerns. In the second section, I will compare and contrast the strategies that U.S. and European regulators have employed in adjusting to these funds. Finally, I will argue that lawmakers in …

Whither Communism: A Comparative Perspective On Constitutionalism In A Postsocialist Cuba, Jon L. Mills, Daniel Ryan Koslosky

UF Law Faculty Publications

For over fifty years, Cuba has been a source of high-spirited political and policy debates. Its history and geostrategic position make it unique in American diplomatic and socioeconomic history. Interest in the island has not waned with the collapse of Communism in Eastern Europe and the former Soviet Union. On the contrary, Raul Castro’s assumption of Government has led many to begin asking how and under what circumstances political liberalization and economic transformation may occur in Cuba. This article examines the possible constitutional outcomes of a Cuba transition and introduces a framework for analyzing both Cuban economic reforms and US …

Interrogation And Silence: A Comparative Study, Craig M. Bradley

Articles by Maurer Faculty

This article examines interrogation practices in detail in three systems: the American, the English (and Welsh), and the Canadian while also discussing rules from various other countries. It considers when the Miranda-type warnings (required in all three systems) must be given and when suspects will be deemed to have waived their rights. This article further discusses how reliability and voluntariness of confession is assured. Finally, a particular emphasis is placed on the issue of when a suspect's silence during interrogation may be used against him in court. The article concludes that American courts have not done enough to ensure reliability …

Constitutionalism Before Constitutions: Burma's Struggle To Build A New Order, David C. Williams

Articles by Maurer Faculty

No abstract provided.

A Constitution Without Constitutionalism: Reflections On Iraq's Failed Constitutional Process, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

Two Halves Of A Whole: Teaching International And Comparative Employment Law, Michael J. Zimmer

Faculty Publications & Other Works

No abstract provided.

China's New Anti-Monopoly Law: A Perspective From The United States, Thomas R. Howell, Alan Wm. Wolff, Rachel Howe, Diane Oh

Washington International Law Journal

In August 2007, China enacted an Anti-Monopoly Law, becoming one of roughly ninety nations to establish a comprehensive regulatory regime governing competition. Since the advent of China’s economic reform program beginning three decades ago, China has been moving to integrate its economy within the global trading system. This article provides an overview of China’s Anti-Monopoly Law (“AML”) emphasizing key areas of significant apparent divergence from U.S. antitrust policy. The article addresses the evolution of anti-monopoly policy in China and the United States, observing that, where differences exist, China’s AML frequently reflects principles similar to those once embedded in U.S. antitrust …

Irrigating The Famished Fields: The Impact Of Labour-Led Struggles On Policy And Action In Nigeria (1999-2007), Obiora Chinedu Okafor

Articles & Book Chapters

Between 1999 and 2007, a broad-based labour-led movement which focused most of its energies on its struggle against unpopular fuel price hikes in Nigeria was able to exert considerable, though limited, influence on an Obasanjo-led executive arm of government that was at best quasidemocratic in its orientation. This article argues that, despite the very important roles played by other factors (notably the presence of more democratic space in Nigeria post-1999), the movement's adoption of a mass social movement approach facilitated its ability to exert such influence.

Payment Transactions Under The Eu Payment Services Directive: A U.S. Comparative Perspective, Benjamin Geva

Articles & Book Chapters

This article endeavours to analyse the provisions of Title IV governing rights and obligations in relation to the provision and use of payment services. Analysis is particularly from a US comparative perspective. Attention will be given to Uniform Commercial Code ("UCC") Article 4A, which governs U.S. wire and other credit transfers as well as federal laws governing consumer retail payment systems. A broader but related objective of the article is the assessment of the contribution of Title IV to the harmonization of funds transfer and payment law, not only by comparison to the U.S., but also by reference to a …

The Gaelic Goetz: A Case Of Self-Defense In Ireland, Stacy Caplow

Cardozo Journal of International and Comparative Law

For two years, the name Padraig Nally was a household word in Ireland. Nally killed an intruder on his farm in a rural community by shooting him in the back as he was running away, already injured from a brutal beating. The intruder was a Traveller, a minority group in Ireland that is mistrusted and ostracized. The killing was so far from the paradigmatic self-defense claim that the trial judge refused to instruct the jury on a full justification defense. Indicted for murder, Nally was convicted of manslaughter under a doctrine in Ireland called 'excessive force.' After the appeals court …

Draconian Or Just? Adopting The Italian Model Of Imposing Administrative Fines On The Purchasers Of Counterfeit Goods, Amanda Silverman

Cardozo Journal of International and Comparative Law

The note examines the effectiveness of penalizing consumers for purchasing counterfeit goods, focusing on Italy's approach and its implications for the U.S. It argues that such penalties can deter demand and reduce counterfeiting, aligning with the propertization of trademarks. The analysis highlights enforcement challenges, including proving consumer intent, and suggests using objective criteria like price and seller credibility. The note proposes adopting Italy's model in the U.S. to protect intellectual property and consumer trust, despite potential privacy concerns and enforcement difficulties.

Redefining Motherhood: Discrimination In Legal Parenthood In Japan, Rachel Brehm King

Washington International Law Journal

Due to Japan’s decreasing population numbers and low birth rate, the country’s legal forces and social norms put tremendous pressure on women to have children. To meet these expectations, Japanese women frequently turn to new forms of medical assistance called Assisted Reproductive Technology (“ART”) to increase their ability to become mothers. ART includes such procedures as artificial insemination, in vitro fertilization, and surrogacy. Although several of these methods are accepted by Japanese law and society, other forms of ART, including certain forms of artificial insemination and surrogacy, are strongly disapproved. Japan’s current legal framework prevents women from accessing the full …

Riots And Cover-Ups: Counterproductive Control Of Local Agents In China, Carl F. Minzner

Faculty Scholarship

Chinese cadre responsibility systems are a core element of Chinese law and governance. These top-down personnel systems set concrete target goals linked to official salaries and career advancement. Judges and courts face annual targets for permissible numbers of mediated, reversed, and closed cases; Communist Party secretaries and government bureaus face similar targets for allowable numbers of protests, traffic accidents, and mine disasters. For many local Chinese officials, these targets have a much more direct impact on their behavior than do formal legal and regulatory norms.

This Article argues that Chinese authorities are dependent on responsibility systems, particularly their use of …

Ianfu: No Comfort Yet For Korean Comfort Women And The Impact Of House Resolution 121, James Ladino

Cardozo Journal of Equal Rights & Social Justice

The note examines the historical injustice and ongoing legal challenges surrounding the issue of "comfort women" during World War II, highlighting the barriers to justice and the ethical and diplomatic complexities that have prevented resolution. It critiques the legal frameworks and international efforts that have failed to address the survivors' demands for acknowledgment and reparations, emphasizing the tension between morality and geopolitical interests.

Lawyers Without Borders, Catherine A. Rogers

Faculty Scholarship

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Administrative Governance As Corporate Governance: A Partial Explanation For The Growth Of China's Stock Markets, David A. Caragliano

Michigan Journal of International Law

This Note argues that during the first decade of stock market development (roughly 1990-2000) Chinese institutions, which emphasized administrative direction and control, functioned in lieu of legal and financial institutions. Preexisting modes of administrative governance introduced incentives that mitigated information asymmetry problems inherent in initial public offerings (IPOs) and contributed to enhanced market valuation during the post-IPO phase. The author focuses on two sui generis Chinese institutions employed during this time period: the quota system for equity share issuance and the Special Treatment (ST) system for underperforming issuers. In short, the thesis is that administrative governance substituted for corporate governance.

Introduction: Symposium On Law, Entrepreneurship, And Economic Recovery, Anthony J. Luppino

Faculty Works

No abstract provided.

The Effect Of The Taiwan Relations Act Of 1979 On Res Judicata And Collateral Estoppel With Respect To Taiwanese And Third-Country Parties In United States Courts, Michael Buxton Devine

Richmond Journal of Global Law & Business

President Jimmy Carter terminated diplomatic relations be- tween the United States and the Republic of China (the ROC) or Taiwan on January 1, 1979, and Congress enacted the Taiwan Relations Act of 1979 (the TRA), effective on April 10, 1979, in order to replace the former diplomatic relations. The question then arose as to whether United States courts must recognize and enforce judgments of Taiwanese courts with respect to third-country plaintiffs who have prevailed over Taiwanese defendants. If so, then such third-country plaintiffs would be able to rely on the principles of res judicata and collateral estoppel in United States …

On Law And The Transition To Market: The Case Of Egypt, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

On the eve of independence from European colonialism, Egypt, like most other developing countries, undertook the project of de-linking itself from colonial economy by initiating domestic industrialization. The economic project known as Import Substitution Industrialization (“ISI”) was designed to liberate Egypt from raw commodity production--specifically, agricultural and mineral--servicing its previous colonial master, Great Britain. The engine of development would be an expanding public sector with nationalization and socialism as leitmotifs. In re-orienting the economy towards industrial production, Egypt hoped that the terms of trade with the international economy would significantly improve, thereby leading to an improvement in the living standards …

Turkey: At The Crossroads Of Secular West And Traditional East, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

On January 9, 2008 Washington College of Law at American University sponsored a conference entitled: Turkey: At the Crossroads of Secular West and Traditional East. This conference was percipitated by the recent election of the AKP party in Turkey and my trip to Turkey in summer 2007. In this short introduction to the American University International law Review symposium issue, I summarize the major issues raised in that one day conference specifically by Dean Haluk Kabaalioglu of Yeditepe University Facutly of Law, expert on EU law and Turkish-EU relations,and Professor Feroz Ahmad, the learned historian of modern Turkey. The aim …

Comity And Foreign Parallel Proceedings: A Reply To Black And Swan. Lloyd’S Underwriters V. Cominco Ltd., Austen L. Parrish

Articles by Maurer Faculty

Lloyd's Underwriters v. Cominco Ltd., is a potentially seminal case, currently pending before the Supreme Court of Canada. The case involves the issue of whether Canadian courts should stay litigation in the face of duplicative foreign proceedings. This reply responds to Vaughan Black's and John Swan's comment on the Lloyd's case, which was published in volume 46 of the Canadian Business Law Journal.

The reply argues that although Black and Swan have important insights into judgment enforcement when competing, inconsistent decisions exist, their analysis too readily skips over the first-to-file rule and underestimates the costs of reactive litigation. Canadian courts …

International Law In Domestic Courts: A Conflict Of Laws Approach, Karen Knop, Ralf Michaels, Annelise Riles

Cornell Law Faculty Publications

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique."

In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between …

Executions, Deterrence And Homicide: A Tale Of Two Cities, Franklin Zimring, Jeffrey Fagan, David T. Johnson

Faculty Scholarship

We compare homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 1996-97 to a level that we show was probably the highest in the world. Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong, by contrast,has no executions all during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in Singapore …