Comparative and Foreign Law | Open Access Articles

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

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China's New Regulations On Religion: A Small Step, Not A Great Leap, Forward, Eric R. Carlson

BYU Law Review

No abstract provided.

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Duck Duck Recuse? Foreign Common Law Guidance & Improving Recusal Of Supreme Court Justices, R. Matthew Pearson

Washington and Lee Law Review

No abstract provided.

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Religion In The Public Sphere: Challenges And Opportunities In Ghanaian Lawmaking, 1989-2004, Elom Dovlo

BYU Law Review

No abstract provided.

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Rethinking The Role Of Religion In Changing Public Spheres: Some Comparative Perspectives, Rosalind I.J. Hackett

BYU Law Review

No abstract provided.

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Religion In The Public Sphere: Challenges And Opportunities In Japan, Hiroaki Kobayashi

BYU Law Review

No abstract provided.

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Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine

Articles

No abstract provided.

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Contracts Concluded By Electronic Agents - Comparative Analysis Of American And Polish Legal Systems, Aleksandra M. Jurewicz

ExpressO

This article analyzes the US and Polish law on contract formation by electronic agents. It persents the main similarities and differences in the approaches of common and civil legal systems. Finally, it discusses changes in legal theories in Poland that had to be made in order to comply with standards of electronic commerce.

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Lost In The Shuffle: State-Recognized Tribes And The Tribal Gaming Industry, Alexa Koenig, Jonathan Stein

ExpressO

This article presents the emerging argument that Native American tribes that have received state but not federal recognition have a legal right to engage in gaming under state law. This argument is based on five points: that 1) the regulation of gaming is generally a state right; 2) state tribes are sovereign governments with the right to game, except as preempted by the federal government; 3) federal law does not preempt gaming by state tribes; 4) state tribal gaming does not violate Equal Protection guarantees; and 5) significant policy arguments weigh in favor of gaming by state tribes under state …

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Brazil Enacts New Federal Bankruptcy Law, Gilberto Deon Correa, Ricardo C. Veirano

Brigham Young University International Law & Management Review

No abstract provided.

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Brazil Presses Forward With Economic Reform, Solidifying A Fresh Start, C. Gabriel Sanchez, Augusto Perez

Brigham Young University International Law & Management Review

No abstract provided.

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Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

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The Transformation Of South African Private Law After Ten Years Of Democracy: The Role Of Torts (Delict) In The Consolidation Of Democracy, Christopher J. Roederer

ExpressO

Although the role of the private law has been largely ignored in studies of transitional justice, private law is a crucial component in South Africa’s transition/transformation. Contrary to the views of some commentators, the private law and delict in particular, were tainted by apartheid. Further, even if the private law of South Africa was not infected by the apartheid cancer, it acted as a carrier and facilitator of apartheid values and policies, perpetuating the inequities apartheid. While there is evidence of the cancer in apartheid case law the more serious problem was a failure of delict to progress under apartheid. …

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Lost In Translation: The Economic Analysis Of Law In The United States And Europe, Kenneth G. Dau-Schmidt

ExpressO

In this essay, we examine the reasons why the economic analysis of law has not flourished in European countries as it has in the U.S. In particular, we focus on three European countries - the United Kingdom (U.K.), Germany, and France. We argue that differences in culture, the legal system and the academy have led to differing degrees of success of the law and economics movement in each country. We speculate that, although there is currently less interest in the economic analysis of the law in Europe than in the United States, European interest could dramatically increase if scholars adopt …

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Comparative Law: Alcohol, Drug Abuse & Jurisprudence From The United States To Korea, Hyun J. Cho

LLM Theses and Essays

Human beings have struggled against alcohol and drug addiction since the beginning of history. All kinds of possible ways have been used to treat addicts effectively, such as segregation, whipping, sterilization, or execution. Like the ancient methods used to treat the disabled, these methods used to treat alcoholic and drug addicts stemmed mainly from ignorance and prejudice. Through trial and error, a fresh approach of treating alcoholism and drug addiction as a disease has emerged. This new perspective has created drug courts and a movement called Alcoholics Anonymous that have shown successful results, in helping create greater protection under the …

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Thwart A Tyrant By Resolving Land Crisis, Bernadette Atuahene

All Faculty Scholarship

No abstract provided.

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From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

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Thieves In Cyberspace: Examining Music Piracy And Copyright Law Deficiencies In Russia As It Enters The Digital Age, Michael F. Mertens

ExpressO

The article discusses broadly the music piracy problem in Russia, the current state of Russia’s copyright laws, and how its laws and problems compare to the U.S. and the rest of the world. In particular, the article focuses on music piracy through the Internet and how it has exploded in Russia. One of the websites I target is the infamous Allofmp3.com, which has attracted a large amount of U.S. attention in recent times by consumers as well as lawmakers. The article analyzes the legislative and enforcement deficiencies in Russia that led to the enormous problem with traditional music piracy and …

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Reforming Retirement Systems: Why The French Have Succeeded When Americans Have Not, Kathryn L. Moore

Law Faculty Scholarly Articles

In order to understand why the American Social Security system has been so resistant to change while the retirement systems in other countries have been amended, this Article analyzes why one country, France, was able to reform its retirement system significantly in 2003. The Article begins by briefly describing the French retirement system prior to 2003. It then provides an overview of the most significant changes wrought by the reform enacted in 2003. It then analyses why, after years of inaction and failed attempts to reform the French retirement system, the government succeeded in reforming the retirement system in 2003. …

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Taking Legal Pluralism Seriously: The Alien Tort Claims Act And The Role Of International Law Before U.S. Federal Courts, Luisa Antoniolli

Indiana Journal of Global Legal Studies

Back to Government?: The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts, Symposium. University of Trento, Italy, June 11-12, 2004.

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Foreign Law And The U.S. Constitution, Kenneth Anderson

Popular Media

The use of foreign law and unratified international treaty law by U.S. courts in U.S. constitutional adjudication has emerged as a major debate among justices of the U.S. Supreme Court, with Justice Anthony Kennedy writing for a majority approving the practice in the March 2005 decision of Roper v. Simmons, and Justices Antonin Scalia and Stephen Breyer undertaking an unusual public discussion of the practice in January 2005 at American University law school. This article examines the arguments made by Justices Kennedy, Scalia, and Breyer for and against the practice, setting them in the broader context of constitutional theory. It …

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Plea Bargaining At The Hague, Julian A. Cook

Scholarly Works

Plea bargaining has come to The Hague. For most of its existence, the International Criminal Tribunal for the Former Yugoslavia (ICTY) shunned plea bargains. However, under pressure from United Nations member states and the impending deadline for the resolution of its caseload, the ICTY has increasingly relied on plea bargains in recent months. This Article exposes the deficiencies in guilty plea procedures at The Hague, particularly those designed to assess whether a plea is fully informed and voluntary. In a series of case studies, the Article argues that judicial questioning techniques have exploited the vulnerable state of defendants appearing before …

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The "Proof" Of Foreign Normative Facts Which Influence Domestic Rules, Frederic Bachand

Osgoode Hall Law Journal

This article concerns the ascertainment by judges of normative facts that emanate from within foreign legal orders and must be taken into consideration in the interpretation of domestic rules. The author proposes an analytical approach which is based on three ideas. First, judges must remain in control of the process aimed at ascertaining such facts. Because the interpretation of domestic rules is at stake, they cannot remain passive and rule solely on the basis of the information adduced by the parties, as they normally do while ascertaining the contents of foreign rules under a classic conflict of laws scenario. Second, …

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Unlawful Dividends, Unjust Enrichment, And The Defence Of Change Of Position, Cecil Duncan Macrae

Research Collection Yong Pung How School Of Law

Economic analysis is applied to determining the effect of the change of position defense on the question of whether an innocent shareholder receiving an unlawful, mistaken dividend should be liable under English restitution law as the result of unjust enrichment. The analysis builds on and extends previous economics analysis of mistaken money transfers under restitution law. The conclusion of the analysis of the change of position defense is that unjust enrichment liability with the defense should not be extended to unlawful, mistaken dividends, even if the factors for unjust enrichment are present.

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Anti-Competitive Practices In Service/Investment Markets Used By Korea And Japan, Eun Sup Lee

ExpressO

This study analysis shows that the anti-competitive practices in the service market of the two countries have almost identical characteristics, even though there are differences in the degree of the criticism against those barriers from their trading partner countries. These practices reflect the policy objectives of both governments to emphasize consumer protection or stability of financial institutes rather than the institutes' competitiveness or operative efficiency, somewhat different from developed western countries. Such policy objectives reflect the overall social and cultural environments of the two countries which stress stability rather than productivity or efficiency of any institute. Considering the over-all economic …

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The Comparative Law And Economics Of Pure Economic Loss, Francesco Parisi, Vernon Valentine Palmer, Mauro Bussani

George Mason University School of Law Working Papers Series

Law and economics shows that a key factor in determining the optimal economic loss rule is found in the relationship between pure economic loss and social loss. Economic loss should be compensable in torts only to the extent that it corresponds to a socially relevant loss. In this paper we undertake a comparative evaluation of the economic loss rule to verify whether modern legal systems, although not formally adopting the economic criterion, define the exclusionary rule in light of efficiency considerations. The comparative analysis reveals that the substantive applications of the economic loss rule in European jurisdictions are consistent with …

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Regulation On Sino-Foreign Cooperation In Making Television Programs, Litong Chen

Washington International Law Journal

The Chinese Government traditionally has believed that the voices of adversaries, whether foreign or domestic, should not be heard. The Preamble to the Chinese Constitution states that, "The Chinese people must fight against those forces and elements, both at home and abroad, that are hostile to China's socialist system and try to undermine it."' The beachhead which has been regarded as most critical for the Communist Party of China ("CPC") to defend is China's mass media—the CPC's mouthpiece for its ideological rhetoric. Conventionally, the best way to keep a beachhead is to repel the enemy from its shores. Historically, China …

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The Japanese Antimonopoly Act And Nonassertion Of Patents Provisions: Microsoft's Conflict With The Japan Fair Trade Commission, Courtney E. Mertes

Washington International Law Journal

In recent decades, Japan has strengthened its antimonopoly regulations. Now, a country that historically favored internal collusion continues to develop a stringent antimonopoly regime that encourages competition. The Japan Fair Trade Commission ("JFTC") enforces the Japanese Act Concerning the Prohibition of Private Monopoly and the Maintenance of Fair Trade ("Antimonopoly Act") and its provisions dealing with unfair trade practices. The JFTC takes a strong stance in enforcement of the Act and violators follow its recommendations. The JFTC has charged Microsoft Corporation ("Microsoft") with abuse of a dominant bargaining position and unfair trade practices in its use of restrictive provisions, such …

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State Responsibility And Maritime Terrorism In The Strait Of Malacca: Persuading Indonesia And Malaysia To Take Additional Steps To Secure The Strait, Tammy M. Sittnick

Washington International Law Journal

The Strait of Malacca, located between Indonesia and Malaysia, and opening into the Pacific Ocean off the coast of Singapore, is not only one of the world's busiest and most vital waterways, but also a likely target for maritime terrorists. High levels of piracy and the presence of numerous regional terrorist organizations suggest the Strait is particularly vulnerable to a maritime terrorist attack. Such an attack would significantly disrupt international trade and could inflict billions of dollars in damage to the global economy. Primary responsibility for the security of the Strait lies with the coastal states of Indonesia, Malaysia, and …

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Extreme Policy Makeover: Re-Evaluating Current U.S.-Vietnam Relations Under The International Religious Freedom Act, Kevin V. Tu

Washington International Law Journal

Following the signing of the Paris Peace Accord in 1973, the relationship between the United States and Vietnam remained essentially frozen. In 2000, the signing of the United States-Vietnam Bilateral Trade Agreement was an epic step in the normalization of relations. In addition, the BTA was hailed as a means of effectuating positive change in the area of Vietnam's human rights. Unfortunately, the state of religious freedom in Vietnam has deteriorated while economic ties with the United States have strengthened. Despite Vietnam's purported respect for religious freedom, violations continue. Vietnam restricts the practice of religion, detains religious leaders, and tolerates …

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Full-Text Articles in Comparative and Foreign Law

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

China's New Regulations On Religion: A Small Step, Not A Great Leap, Forward, Eric R. Carlson

BYU Law Review

Duck Duck Recuse? Foreign Common Law Guidance & Improving Recusal Of Supreme Court Justices, R. Matthew Pearson

Washington and Lee Law Review

Religion In The Public Sphere: Challenges And Opportunities In Ghanaian Lawmaking, 1989-2004, Elom Dovlo

BYU Law Review

Rethinking The Role Of Religion In Changing Public Spheres: Some Comparative Perspectives, Rosalind I.J. Hackett

BYU Law Review

Religion In The Public Sphere: Challenges And Opportunities In Japan, Hiroaki Kobayashi

BYU Law Review

Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine

Articles

Contracts Concluded By Electronic Agents - Comparative Analysis Of American And Polish Legal Systems, Aleksandra M. Jurewicz

ExpressO

Lost In The Shuffle: State-Recognized Tribes And The Tribal Gaming Industry, Alexa Koenig, Jonathan Stein

ExpressO

Brazil Enacts New Federal Bankruptcy Law, Gilberto Deon Correa, Ricardo C. Veirano

Brigham Young University International Law & Management Review

Brazil Presses Forward With Economic Reform, Solidifying A Fresh Start, C. Gabriel Sanchez, Augusto Perez

Brigham Young University International Law & Management Review

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

The Transformation Of South African Private Law After Ten Years Of Democracy: The Role Of Torts (Delict) In The Consolidation Of Democracy, Christopher J. Roederer

ExpressO

Lost In Translation: The Economic Analysis Of Law In The United States And Europe, Kenneth G. Dau-Schmidt

ExpressO

Comparative Law: Alcohol, Drug Abuse & Jurisprudence From The United States To Korea, Hyun J. Cho

LLM Theses and Essays

Thwart A Tyrant By Resolving Land Crisis, Bernadette Atuahene

All Faculty Scholarship

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

Thieves In Cyberspace: Examining Music Piracy And Copyright Law Deficiencies In Russia As It Enters The Digital Age, Michael F. Mertens

ExpressO

Reforming Retirement Systems: Why The French Have Succeeded When Americans Have Not, Kathryn L. Moore

Law Faculty Scholarly Articles

Taking Legal Pluralism Seriously: The Alien Tort Claims Act And The Role Of International Law Before U.S. Federal Courts, Luisa Antoniolli

Indiana Journal of Global Legal Studies

Foreign Law And The U.S. Constitution, Kenneth Anderson

Popular Media

Plea Bargaining At The Hague, Julian A. Cook

Scholarly Works

The "Proof" Of Foreign Normative Facts Which Influence Domestic Rules, Frederic Bachand

Osgoode Hall Law Journal

Unlawful Dividends, Unjust Enrichment, And The Defence Of Change Of Position, Cecil Duncan Macrae

Research Collection Yong Pung How School Of Law

Anti-Competitive Practices In Service/Investment Markets Used By Korea And Japan, Eun Sup Lee

ExpressO

The Comparative Law And Economics Of Pure Economic Loss, Francesco Parisi, Vernon Valentine Palmer, Mauro Bussani

George Mason University School of Law Working Papers Series

Regulation On Sino-Foreign Cooperation In Making Television Programs, Litong Chen

Washington International Law Journal

The Japanese Antimonopoly Act And Nonassertion Of Patents Provisions: Microsoft's Conflict With The Japan Fair Trade Commission, Courtney E. Mertes

Washington International Law Journal

State Responsibility And Maritime Terrorism In The Strait Of Malacca: Persuading Indonesia And Malaysia To Take Additional Steps To Secure The Strait, Tammy M. Sittnick

Washington International Law Journal

Extreme Policy Makeover: Re-Evaluating Current U.S.-Vietnam Relations Under The International Religious Freedom Act, Kevin V. Tu

Washington International Law Journal