Comparative and Foreign Law Commons^™

Plea-Bargaining, Negotiating Confessions And Consensual Resolution Of Criminal Cases, Stephen C. Thaman

All Faculty Scholarship

This report explores the various types of consensual procedures that make up the procedural arsenals of modern criminal justice systems and if and how they have contributed to procedural economy in the respective country. It discusses whether or not important procedural principles have been compromised, undermining the legitimacy of the criminal justice system.

The Good, The Bad, Or The Indifferent: '12 Angry Men' In Russia, Part Of Symposium: The 50th Anniversary Of '12 Angry Men', Stephen C. Thaman

All Faculty Scholarship

Sidney Lumet’s 1957 film, 12 Angry Men, based on the screenplay by Reginald Rose, has become the emblem of the American jury trial as an anti-authoritarian institution based on democratic consensus building. This essay discusses the interplay of literature and criminal justice in pre-Revolution Russia, for this is the cultural soil upon which the film 12 Angry Men was received in Soviet Russia, when it was first screened in 1961. It discusses the reception of 12 Angry Men in Soviet Russia in 1961 and the impact it had on Soviet-era citizens in their understanding of American and Soviet criminal justice, …

Penal Court Procedures: Doctrinal Issues, Stephen C. Thaman

All Faculty Scholarship

Volume III: This is an encyclopedia entry on doctrinal issues in penal court procedures.

The Nullification Of The Russian Jury: Lessons For Jury-Inspired Reform In Eurasia And Beyond, Stephen C. Thaman

All Faculty Scholarship

This article explores the extent to which the Russian jury system has achieved goals crucial to the reformation of inquisitorial Soviet practices.

Teaching Comparative Perspectives In Mediation: Some Preliminary Reflections Symposium: Transatlantic Perspectives On Alternative Dispute Resolution, Jacqueline Nolan-Haley

Faculty Scholarship

The study of comparative law and legal process in any subject area offers the usual advantages of learning about other countries' legal cultures and developing a deeper understanding of one's own legal tradition. In the case of mediation, it is important to evaluate critically what is learned through comparative analysis. Mediation is still developing as a profession; it is newly institutionalized in legal cultures; and, it is relatively new to the canon of legal education. National legal traditions have responded differently to the implementation of mediation. Thus, lawyers must have an understanding of the differences and nuances in mediation law …

Invasive Seaweed: Global And Regional Law And Policy Responses, Meinhard Doelle, Moira Mcconnell, David Vanderzwaag

Articles, Book Chapters, & Popular Press

We consider law and policy responses to invasive seaweeds at global and regional levels. Key global regimes considered include the 1982 United Nations Convention on the Law of the Sea, the Convention on Biological Diversity, the Ramsar Convention and the Bonn Convention on Migratory Species. Contributions from the Food and Agriculture Organization and the International Maritime Organization are also considered in the global context. At a regional level, examples of efforts in North America and Europe are offered to illustrate challenges and opportunities for regional responses to invasive seaweeds. We conclude with law and policy recommendations, most notably the need …

Molecular Federalism And The Structures Of Private Lawmaking, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Private Finance, Social Responsibility, And Transitional Justice: The Case For South African Reconciliation And Development Bonds, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Insider Trading Rules Can Affect Attractiveness Of Country's Stock Markets, Laura Nyantung Beny

Articles

The academic debate about the desirability of prohibiting insider trading is longstanding and as yet unresolved. Until Henry Manne’s 1966 book, Insider Trading and the Stock Market, the debate centered on whether insider trading is unfair to public investors who are not privy to private corporate information. However, the fairness approach is malleable and indeterminate and thus does not lend itself to clear-cut policy prescriptions. Since Manne’s book, the focus of the debate has been on the effect of insider trading on economic efficiency. Manne argued that, contrary to the prevailing legal and moral opinion of the time, insider trading …

Capital Punishment In The United States, And Beyond, Paul Marcus

Faculty Publications

This article explores the controversial topic of capital punishment, with a particular focus on its longstanding application in the United States. The use of the death penalty in the US has been the subject of much criticism both domestically and internationally. The numerous concerns addressed in this article relate to the morality of the punishment, its effectiveness, the uneven application of the penalty, and procedural problems. The US Supreme Court has confirmed the constitutionality of capital punishment while striking down particular uses of the death penalty. The US is not, however, alone in executing convicted defendants. Capital punishment is still …

Toward A Sui Generis View Of Black Rights In Canada? Overcoming The Difference-Denial Model Of Countering Anti-Black Racism, Lolita Buckner Inniss

Publications

No abstract provided.

Combating Corruption Through International Law In Africa: A Comparative Analysis, Won Kidane, Tom Snider

Faculty Articles

"Little did we suspect," remarked Nelson Mandela, "that our own people, when they get that chance, would be as corrupt as the apartheid regime. That is one of the things that has really hurt us." Africa is the only continent that has grown poorer over the last three decades. The causes of Africa's existing predicaments are complete; however, there is no argument that deep-rooted corruption is one of the most serious contemporary developmental challenges facing the continent. Mr. Adama Dieng, who the Secretary General of the Organization of African Unity (OAU), the precursor of the African Union (AU), entrusted with …

Protecting Constitutionalism In Treacherous Times: Why 'Rights' Don't Matter, W. Wesley Pue

All Faculty Publications

Common lawyers have focused too much on rights talk and especially on constitutionally entrenched Bills of Rights in critiquing Anti-Terrorism legislation enacted by democratic common law countries since September 11, 2001. This paper illustrates the ways in which rights talk acts as a distraction from fundamental principles of legality when Anti-Terrorism laws are considered, arguing that embedded rights play three roles antithetical to sustaining governance in accordance with fundamental principles of legality: the roles of paper tiger, Trojan horse, and narcotic.

Imports Or Made-In-China: Comparison Of Two Constitutional Cases In China And The United States, Xiao Li

LLM Theses and Essays

When its economic increase attracts the global attention, China is also looking for a break-through in its judicial reform. The Qi v. Chen case (2001) was considered to be the Chinese version of Marbury v. Madison and gave rise to a heated discussion of the judicial review power in China. This article will analyze the doubts on the Qi case and the prospects of judicial review it indicates through comparison with Marbury v. Madison. Although Qi v. Chen opened the door for constitutional litigation, its dramatic facts and strained application of the Constitution threw it into question. Nevertheless, its effect …

Justice And Reconciliation On Trial: Gacaca Proceedings In Rwanda, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

Limits To The Independent Anti-Corruption Commission Model Of Corruption Reform: Lessons From Indonesia, Leslie Gielow Jacobs, Benjamin B. Wagner

McGeorge School of Law Scholarly Articles

No abstract provided.

Introduction To Comparative Fiscal Federalism: Comparing The European Court Of Justice And The Us Supreme Court's Tax Jurisprudence, James R. Hines Jr.

Other Publications

This volume brings together scholars from both sides of the Atlantic to consider federalist tax jurisprudence as practiced in Europe and the United States. These essays display a broad range of shared concerns, which is not to say that the scholars agree on all points of substantive policy and interpretation. What can be said is that there is general agreement that the exercise of comparing the tax jurisprudence of the European Court of Justice and the US Supreme Court is likely to be informative and beneficial to all concerned.

Recent Reforms To The Japanese Judiciary: Real Change Or Mere Appearance?, Daniel H. Foote

Articles

In June 2001, the Justice System Reform Council ("Reform Council" or "Council") issued its final report. The Council's recommendations included several proposed reforms to the judiciary, intended to insure the judiciary would "meet the expectations of the people." This essay examines a number of those recommendations and the resulting reforms.

The single reform to the judiciary that has received the most publicity is the introduction of the saiban'in system, through which ordinary citizens will participate directly in judging serious crim:inal cases and thus will have the opportunity to express their views directly in the deliberation of those cases. That system, …

Separating State From Church: Researching The Legal System Of The Vatican City State, Stephen E. Young, Alison Shea

Scholarly Articles

Mr. Young and Ms. Shea discuss the unique situation of the Vatican City State in legal research. They provide an overview of the founding documents and the constitutional structure of the world's smallest sovereign nation, a discussion of the complex nature of the Vatican's international status, and a bibliographic essay covering the materials most likely to be available in law libraries in the United States.

Comparative Law, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

The Feminist Battle For Citizenship: Between Combat Duties And Conscientious Objection, Daphne Barak-Erez

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal and feminist struggles surrounding women's inclusion in military service, arguing that such inclusion is central to achieving full citizenship and equality. It critiques the differential treatment of men and women in military service, highlighting how legal frameworks perpetuate gendered roles and undermine civic equality. While legal victories like United States v. Virginia and *Miller* have advanced women’s rights, they have not fully dismantled structural barriers to equality. The article emphasizes the tension between feminist goals of equality and critiques of militarism and patriarchal institutions.

Reforming Federal Personal Injury Litigation By Incorporation Of The Procedural Innovations Of Scotland And Ireland: An Analysis And Proposal, Daniel H. Erskine

Cardozo Journal of International and Comparative Law

Federal procedure has embraced the referral of civil cases outside the court system to alternative dispute resolution. This article argues that by utilizing courts to settle cases through civil procedure, courts realize their central role in ensuring the quality of settlements produced through the judicial administration of justice. The purpose of this article is to provide litigants with an optional procedure to expeditiously resolve federal personal injury cases. The system proposed in this article incorporates Scottish and Irish civil procedural reforms into a coherent method for judicial officers to declare the settlement value of a personal injury action without referring …

The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow

Articles

In fiscal year 2002, approximately 5.8 million Americans borrowed $38 billion (USD) in federal student loans. This was more than triple the $11.7 billion borrowed in 1990. As a rule of thumb, tuition has been increasing at roughly double the rate of inflation in recent years. This troubling trend of accelerating tuition, coupled with the fact that real income has stagnated for men and increased only modestly for women over the past two decades, means that more and more students are going to need to turn to borrowed money to finance their degrees absent a radical restructuring of the postsecondary …

A Cuban Connection: Edwin F. Atkins, Charles Francis Adams, Jr., And The Former Slaves Of Soledad Plantation, Rebecca J. Scott

Articles

Edwin F. Atkins and Charles Francis Adams, Jr., stand out on this stage not as major players but as a particularly intriguing Boston connection. Among the truly major players, planters like Juli?n Zulueta and the Count of Casa More owned hundreds of slaves and shaped Spanish policy. On the Cuban nationalist side, few could equal the impact of Antonio Maceo, the mulato insurgent general who insisted on full emancipation at the end of the 1868-1878 war, or the thousands of rebels who fought under the orders of rebel generals Maceo and Maximo Gomez. As the master of some ninety-five patrocinados …

Privacy's Other Path: Recovering The Law Of Confidentiality, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the …

Taxing Consumption And Other Sins, James R. Hines Jr.

Articles

Federal and state governments in the United States use income and payroll taxes as their primary tools to collect revenue. In the rest of the world, governments also use income and payroll taxes, but rely much more heavily than does the United States on taxing consumption. Consumption taxes take many forms, including general sales taxes, value-added taxes, and excise taxes on the consumption of specific items including gasoline, alcohol, tobacco products, firearms, air travel, telephone communication, and others. The U.S. government does not use a value-added tax, making the United States unique among high-income countries and a rarity in the …

Is A Gift Forever?, William I. Miller

Articles

What are the rules regarding gifts you receive? Can you give them away? If so, must you conceal that you have done so from the original giver? Or is there a statute of limitations, after which any right the original giver has to feel wronged or to burden you with guilt for undervaluing it by giving it away rightly expires? Even an heirloom might exhaust its sacredness. Sometimes the sacred has a half-life, as might be the case, for instance, with your grandmother’s dining set. Can the giver ask for his gifts back if you try to give them away? …

China's Courts: Restricted Reform, Benjamin L. Liebman

Faculty Scholarship

Recent developments in China’s courts reflect a paradox largely avoided in literature on the subject: Can China’s courts play an effective role in a non-democratic governmental system? Changes to courts’ formal authority have been limited, courts still struggle to address basic impediments to serving as fair adjudicators of disputes, and courts continue to be subject to Communist Party oversight. Courts have also confronted new challenges, in particular pressure from media reports and popular protests. At the same time, however, the Party-state has permitted, and at times encouraged, both significant ground-up development of the courts and expanded use of the courts …

Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland

Faculty Scholarship

At least since Alexis de Tocqueville wrote in 1831, the idea that America is distinctive from other nations has permeated much political and social commentary. The United States has been variously perceived as unique in its history, its culture, its national values, its social movements, and its social and political institutions. While the term technically refers only to distinctiveness or difference, "exceptionalism" may have positive or negative aspects – what Harold Koh has called "America's Jekyll-and-Hyde exceptionalism." In the legal realm, claims of exceptionalism have been offered to support what Michael Ingnatieff identifies as "legal isolationism" – or refusal by …

Human Rights Outlaws: Nuremberg, Geneva, And The Global War On Terror, George J. Annas

Faculty Scholarship

International human rights law was born from the ashes of World War II. The most important post-World War II products are the United Nations, the Nuremberg Trials, the Universal Declaration of Human Rights, and the Geneva Conventions of 1949. But that was not the end of the story. International human rights law continued to develop and expand right up to September 11,2001, most notably through the adoption of the International Covenant on Civil and Political Rights2 and the Convention Against Torture, 3 and the establishment of the International Criminal Court.4 With the exception of the criminal court, the United States …