Comparative and Foreign Law Commons^™

Kitzmiller And The "Is It Science?" Question, Jay D. Wexler

Faculty Scholarship

When Judge John E. Jones, III, a United States District Court judge appointed by President George W. Bush, ruled that the Dover school board's intelligent design (ID) policy violated the Establishment Clause, ID opponents were ecstatic. They had good reason to be. The opinion was a comprehensive and complete victory for ID opponents. The decision held that the policy was an unconstitutional endorsement of religion when viewed both from a reasonable Dover student's perspective as well as from the perspective of a reasonable adult in the Dover community. It also held that the policy was adopted for a religious purpose, …

The Digital Vat (D-Vat), Richard Thompson Ainsworth

Faculty Scholarship

The most sustained U.S. tax policy debate of the past 30 years concerns proposals to replace and/ or supplement the Federal Income Tax with a consumption tax. Public finance economists and legal tax policy scholars challenged and defended the current income tax system on grounds of fairness, efficiency, and simplicity.

This debate over revamping the national taxing scheme has not been argued purely in the academic forum. Concrete legislative proposals have been advanced for a national retail sales tax, a European-style Value Added Tax, as well as a whole host of what David Bradford calls "the two-tiered consumption taxes."

From …

Comparative Fiscal Federalism: What Can The U.S. Supreme Court And The European Court Of Justice Learn From Each Other's Tax Jurisprudence?, Reuven S. Avi-Yonah

Articles

In October 2005, a group of distinguished tax experts from the European Union and the United States, who had never met before, convened at the University of Michigan Law School for a conference on "Comparative Fiscal Federalism: Comparing the U.S. Supreme Court and European Court of Justice Tax Jurisprudence." The purpose of the conference was to shed comparative light on the very different approaches taken by the European Court of Justice (ECJ) and the U.S. Supreme Court to the question of fiscal federalism. The conference was sponsored by the U-M Law School, U-M's European Union Center, and Harvard Law School's …

Law, Norms, And Legal Change: Global And Local In China And Japan, Nicholas C. Howson, Mark D. West

Articles

The editors of the Michigan Journal of International Law have boldly brought together four articles and commentary that focus on different aspects of the same problem in China and Japan: the relationship between domestic legal change and foreign and/or "international" law and regulation, "soft" agreements, norms, or even cultural practices. The compilation is bold in part because scholarship on change in East Asian law and legal systems often suffers from one of two defects. First, it often focuses on purely domestic phenomena in only one system, ignoring the comparative connections. Second, scholars often attack the problem from an exclusively comparative …

Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson

Faculty Scholarship

On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors' rights and the advent of new technologies, particularly in relation to peer-to-peer networks.

In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular …

Lord Mansfield; Judicial Integrity Or Its Lack; Somerset's Case, Alan Watson

Scholarly Works

I write this after re-reading Steven M Wise's Though the Heavens May Fall. My argument, if convincing, undermines the basis of the book. Probably the most famous decision in English law is that of Lord Mansfield in Somerset v. Stewart in 1772. It is very short and very dramatic; indeed, it is so rhetorical that much of what is vital is overlooked -- as it was meant to be. Somerset was Stewart's slave in Virginia and was brought to England by his owner. Somerset travelled extensively in the service of his master, to Bristol and Edinburgh, for example. But two …

Champagne, Feta, And Bourbon: The Spirited Debate About Geographical Indications, Justin Hughes

Articles

Geographical Indications (GIs) are terms for foodstuffs that are associated with certain geographical areas. The law of GIs is currently in a state of flux. Legal protection for GIs mandated in the TRIPS Agreement is implemented through appellations law in France and through certification mark systems in the United States and Canada. This Article first examines the state of GIs throughout the world. The author then turns to the continuing debate between the European Union and other industrialized economies over this unique form of intellectual property. The European Union claims that increasing GI protection would aid developing countries, but, in …

Repraesentatio In Classical Latin, Alan Watson

Scholarly Works

The Romans knew well the twin concepts of representation and representatives in law suits and in the relationships between father and son, and owner and slave. But for these concepts they did not use the terms repraesentare or any cognate.

To Tertullian, it seems, goes the credit of first using repraesentare and repraesentator in their modern senses of <> and <>. That his context is theological probably should not surprise since he is, above all, a theologian.

Thus he uses repraesentare to mean that the one larger and more important may represent the many and less important. This usage had a …

Ii Finanziamento Delle Ricerche Sulle Cellule Staminali In Europa E Negli Usa, O. Carter Snead

Journal Articles

Funding for stem cell research in Europe and the USA written in Italian. No translation available.

The Federal Constitutional Court: Guardian Of German Democracy, Donald P. Kommers

Journal Articles

Germany’s Federal Constitutional Court rivals the Supreme Court of the United States in protecting political democracy. Its jurisprudence of democracy has shaped the course and character of German politics while upholding the rule of law and defending the constitutionally prescribed “free democratic basic order.” In furtherance of these objectives, the Constitutional Court has invalidated regulations limiting the rights of minor parties and constitutionalizing measures designed to stabilize Germany’s system of parliamentary government. These purposes have been served by constitutional decisions on voting rights, public funding of election campaigns, dissolution of Parliament, and proportional representation, including the limiting 5 percent clause. …

Agenda Control In The Bundestag, 1980-2002, William M. Chandler, Gary W. Cox, Mathew D. Mccubbins

Faculty Scholarship

We find strong evidence of monopoly legislative agenda control by government parties in the Bundestag. First, the government parties have near-zero roll rates, while the opposition parties are often rolled over half the time. Second, only opposition parties’ (and not government parties’) roll rates increase with the distances of each party from the floor median. Third, almost all policy moves are towards the government coalition (the only exceptions occur during periods of divided government). Fourth, roll rates for government parties sky- rocket when they fall into the opposition and roll rates for opposition parties plummet when they enter government, while …

Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz

Faculty Scholarship

Constitutions are generally made by people with no previous experience in constitution making. The assistance they receive from outsiders is often less useful than it may appear. The most pertinent foreign experience may reside in distant countries, whose lessons are unknown or inaccessible. Moreover, although constitutions are intended to endure, they are often products of the particular crisis that forced their creation. Drafters are usually heavily affected by a desire to avoid repeating unpleasant historical experiences or to emulate what seem to be successful constitutional models. Theirs is a heavily constrained environment, made even more so by distrust and dissensus …

Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps

ExpressO

This paper asks two questions connected by the fact that they both stem from the inherent incompleteness of employment contracts: in American law, how can the terms in employment handbooks be variable, but sometimes only within reasonable procedurally fair circumstances; and in English law, why doesn’t the implied term of mutual trust and confidence in employment contracts fall foul of the strict test for implication of terms into contract? This paper finds the answer to both questions in the doctrine of good faith. An analysis of good faith as a “comparative conversation” between academic and judicial debates in the US …

Special Methods For Educating The Transnational Lawyer, Raymond J. Friel

Journal of Legal Education

No abstract provided.

Educating Lawyers For Transnational Challenges–The Globalization Of Legal Regulation, Steven Freeland

Journal of Legal Education

No abstract provided.

Educating Lawyers For Transnational Challenges: Perspectives Of A Developing Country–Botswana, Emmanuel Kwabena Quansah

Journal of Legal Education

No abstract provided.

Educating The Transnational Lawyer: An Integrated Approach, Efrén Rivera-Ramos

Journal of Legal Education

No abstract provided.

Crossing Borders In The Classroom: A Comparative Law Experiment In Family Law, Barbara Atwood, Graciela Jasa Silveira, Nicole Laviolette, Tom Oldham

Journal of Legal Education

No abstract provided.

Commentary On John Makdisi's "Survey Of Aals Law Schools Teaching Islamic Law", Lama Abu-Odeh

Journal of Legal Education

No abstract provided.

Educating Lawyers For Transnational Challenges: The Challenge Of Islamic Law, Ali Ahmad

Journal of Legal Education

No abstract provided.

A Survey Of Aals Law Schools Teaching Islamic Law, John Makdisi

Journal of Legal Education

No abstract provided.

Special Methods And Tools For Educating The Transnational Lawyer, Duncan Bentley, John Wade

Journal of Legal Education

No abstract provided.

Special Methods And Tools For Educating The Transnational Lawyer: Exchanges, Ian Holloway

Journal of Legal Education

No abstract provided.

Globalization In Legal Education Of Korea, Soogeun Oh

Journal of Legal Education

No abstract provided.

Is There A Curricular Core For The Transnational Lawyer?, Michael Bogdan

Journal of Legal Education

No abstract provided.

Extending Predation Analysis To Monopolist's Bundled Discounts Under Section 2: An Economic, Legal, And Comparative Perspective, Seth B. Chertok

ExpressO

In LePage’s v. 3M, the Third Circuit decided the first case at the federal appellate court level that dealt with the subject of bundled discounts by a monopolist under Section 2 of the Sherman Act in the period following the U.S. Supreme Court’s decision in Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation. Prior to the decision in Brooke Group, the Third Circuit had only once before addressed this topic in Smithkline Corp. v. Eli Lilly and Company. Smithkline is only significant because it nearly suggested that any bundled discount, regardless of whether above or below cost, was anti-competitive. …

Anti-Monopoly Law In China: A Socialist Market Economy Wrestles With Its Antitrust Regime, Jared A. Berry

Brigham Young University International Law & Management Review

No abstract provided.

“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

ExpressO

At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, …

The Shari'a Factor In International Commercial Arbitration, Faisal M. Kutty

ExpressO

The world has witnessed a phenomenal growth in commercial disputes transcending national borders due to our increasingly interrelated and globalized world economy. In addition to issues in interpretation of commercial agreements and practices, differences in custom, language, culture and religion will continue to fuel conflicts and disagreements between commercial players. Over the last few decades there have been growing commercial interaction between Western companies and their Middle Eastern counterparts. Given this interaction and the great geo-political and economic importance of this region, it is imperative that Western lawyers and dispute resolution professionals have a reasonable grasp of the general principles …

Jurisdictional Competition In The European Community, Seth B. Chertok

ExpressO

The main purpose of this article is to analyze how four company law cases (Daily Mail, Centros, Uberseering, and Inspire Art) in the European Community have expanded the Freedom of Establishment to potentially open the door to corporate jurisdictional competition in the European Community, similar to the sort that exists in the United States through the Delaware effect. However, in Europe, this type of jurisdictional competition has traditionally been thought of as undesirable, particularly in certain Member States such as Germany that have co-determination and minimum capital requirements. These Member States have continued to adhere to the real seat and …