Comparative and Foreign Law Commons^™

Forum Non Conveniens: "Availability" And "Adequacy" Of Latin American Fora From A Comparative Perspective, Alejandro M. Garro

University of Miami Inter-American Law Review

No abstract provided.

Home And Homelessness In The Middle Of Nowhere, William I. Miller

Book Chapters

In Iceland one must have a home; it is an offense not to-in some circumstances, a capital offense. A sturdy beggar was liable for full outlawry, which meant he could be killed with impunity. The laws are hard on vagrants. Fornication with a beggar woman was unactionable; it was lawful to castrate a vagabond, and he had no claim if he were injured or killed during the operation. One could take in beggars solely for the purpose of whipping them, nor was one to feed or shelter them at the Thing on pain of lesser outlawry. Their booths at the …

Querying Lawrence, Berta E. Hernández-Truyol

UF Law Faculty Publications

In 2003, the Supreme Court in the landmark decision Lawrence v. Texas found a Texas law, banning homosexual, but not heterosexual, sodomy to be unconstitutional. Thus, Lawrence ended the Bowers era in which morality was deemed to be a justification for discrimination against gays and lesbians. While the decision did bring to United States Constitutional analysis the radical idea that gays and lesbians are people too, it stopped short of addressing the real problem the case presents--the existence of a second-class citizenry. This Article examines the Lawrence decision in light of both the international, regional, and foreign jurisprudence and the …

Comparative Legal Responses To Terrorism: Lessons From Europe, Jeremie J. Wattellier

UC Law SF International Law Review

After September 11, 2001, the U.S. Congress and President initiated legal changes to combat terrorism. In the late 20th century, Europe also experienced terrorist attacks on its soil and initiated legal adaptations. Europe's legal history with terrorism shows that harsh procedure-stripping rules do not stop terrorism and come at great costs in civil liberties and legal clout. More procedural safeguards would bring the U.S. legal response back in line with its traditional legal values while still providing a way to fight terrorism. This note investigates the European legal response to its terrorist attacks-measuring successes and gauging costs where possible-and evaluates …

Trade Treaty Threats And Sub-National Sovereignty: Multilateral Trade Treaties And Their Negligible Impact On State Laws, David I. Spector

UC Law SF International Law Review

Advocates of free trade extol the virtues of trade without borders, while opponents decry its abysmal consequences. While debates about the benefits and detriments of free trade seem never-ending, there has been comparatively little discussion of the actual impact of international trade obligations on sub-national components of federal governments. Although the relationship between America's trade treaties and the policies of state governments has become a more visible issue in international trade, relatively little is known about how these international trade obligations really shape state law-making among the fifty U.S. states. This Note examines how international trade treaties have actually impacted …

Introduction 21st Annual Scholarly Programs: The Future Of Force: Waging War In The 21st Century

UC Law SF International Law Review

This year's 21st Annual Scholarly Programs featured two events that brought leaders in the field together to discuss the legal bases for waging war in the 21st Century. The first event, the Scholars Forum, featured Professor Thomas M. Franck, who discussed his paper, Preemption, Prevention and Anticipatory Self-Defense: New Law Regarding Recourse to Force? Professor Diane Marie Amann, Professor David D. Caron, Professor Joel R. Paul and Judge Abraham D. Sofaer responded to Professor Franck's paper and offered their own perspectives. Professor Naomi Roht-Arriaza served as the mediator. The second event, the Rudolph B. Schlesinger Memorial Lecture, featured Michael J. …

The Eu Regulation On Insolvency Proceedings: The Need For A Modified Universal Approach, Jully Pae

UC Law SF International Law Review

The growth of cross-border insolvencies has increased with the growth of international business activity. As courts of multiple jurisdictions are implicated, conflict-of-law problems surface. This note examines different theories which purport to overcome these conflict-of-law problems. This note also proposes that a modified universalism theory, as opposed to the dominant universalism theory, is the best solution to the problems which arise from the cross-border insolvencies.

Following The Right Lead: Gutnick And The Dance Of Internet Jurisdiction, Mary Paterson

Canadian Journal of Law and Technology

As improving methods of travel and communication facilitated the shift from an agrarian to an industrial society, the common law courts increasingly faced interjurisdictional disputes. Although British paternalism dominated early cases in which courts assumed jurisdiction over people, property, and actions in distant lands, these cases and the imperial attitudes informing them were slowly replaced by more modest jurisdictional assertions based on a sense of comity. The shift from an industrial society to an information-based society and the simultaneous growth of a global infrastructure based on satellite, telephone, cable, and cellular technologies have stretched jurisdictional doctrines in new ways, calling …

The War On Terrorism: Peru’S Past And Present, A Legal Analysis (2004), Ralph Ruebner, Et Al.

Faculty White Papers

No abstract provided.

The Nhl Labour Dispute And The Common Law, The Competition Law, And Public Policy, Stephen F. Ross

Faculty Scholarship

This article develops the claim that, absent an agreement with the union, the imposition of a salary cap or punitive luxury tax would constitute an unreasonable restraint of trade, as well as a violation of section 48 of the Competition Act that the Canadian courts should enjoin. The article analyzes decisions of Canadian and other British Commonwealth courts concerning general principles of the common law as well as their specific application in the context of the sports industry. Second, the paper discusses why the same standard applies to restraints challenged under section 48 of the Competition Act. Next. the …

Israel's Example, Sadiq Reza

Other Publications

No abstract provided.

Brief Of Alain De Foucauld As Amicus Curiae In R.M.S. Titanic, Inc. V. The Wrecked And Abandoned Vessel, John Paul Jones

Law Faculty Publications

From the Summary of Argument:

The court below erred in its judgment that the procès verbal of October 20, 1993 should be refused recognition because it is contrary to French law. Article 13 of Decree No. 61-1547 (Dec. 21, 1961) does empower a maritime affairs administrator to award goods to a salvor under the conditions of this case, and there is no basis, in the record or in comity, for a conclusion to the contrary. Legislative acts in Canada and the United Kingdom affording administrative officers in those countries similar powers in cases of wreck and salvage persuade that, to …

On International And Interdisciplinary Legal Ethics Scholarship, W. Bradley Wendel

Cornell Law Faculty Publications

"Legal Ethics is an international and interdisciplinary journal dedicated to the field of legal ethics." The mission statement of this journal poses three concise challenges for scholars in this discipline: To define the domain of legal ethics, to study it from a perspective that is valid across jurisdictional boundaries, and to incorporate the insights of related disciplines. As befits an emerging and exciting field, lawyers and university faculty throughout the English- speaking common-law world have begun to engage with all three of these problems. The book reviews section of Legal Ethics has highlighted the publication of many of the …

What Future Democracy?, Aziz Rana

Cornell Law Faculty Publications

The threat posed by Aids to the development of democracy in Africa plays no part in current discussions of the impact of the disease.

In Search Of A Theory Of Cult And Freedom Of Religion In China: The Case Of Falun Gong, Anne S.Y. Cheung

Washington International Law Journal

Cult and anti-cult movements have been high drama ever since the close of the twentieth century. The tragedies caused by some minority religious groups and the corresponding government responses force us to question the meaning of freedom of religion and to confront our societal conviction to upholding our acclaimed constitutional values. This Article examines the fundamental concept of freedom of religion and the tights that it entails in the case of the People's Republic of China. China's recent crackdown on Falun Gong, a seemingly benign breathing exercise group, has been bitterly controversial. The case of Falun Gong illustrates that the …

Regulatory Diversification And The Monitoring State: The Direction Of Environmental Regulation In Taiwan, Beth E. Kinne

Washington International Law Journal

Rapid industrialization in Taiwan in the latter half of the twentieth century resulted in dramatic increases in industrial pollution and municipal waste, leaving few places on the small island spared from severe pollution. Public pollution protests in the 1970s and 1980s both contributed to and increased with the liberalization of Taiwanese society. With the end of martial law in 1987 and subsequent creation of the Environmental Protection Agency, Taiwan adopted a command and control regulatory scheme that achieved limited success. From the 1980s onward, the Taiwanese government came to rely upon the participation of a greater number and variety of …

Where The Oregon Trail Meets The Silk Road: Why China's Path To Sustainability Should Bypass Oregon, Samuel A. Rodabough

Washington International Law Journal

With a substantial population and continued exponential economic growth, China is perceived as exerting ever-increasing pressure on its natural environment. The concept of sustainable development has been posited by many in the international community as a means of overcoming China's bleak environmental outlook, while simultaneously preserving its economic prosperity. However, because of widespread disagreement as to the precise nature, scope, and practical application of sustainable development, the concept remains elusive and has proven difficult to implement. In its most basic form, sustainable development seeks to simultaneously meet environmental, economic, and social needs. With respect to these needs, China has affirmed …

Marbury V. Madison Around The World, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

To put the point somewhat strongly for emphasis, the U.S. system of judicial review is now something of an outlier among systems of constitutional review. In this Essay, I consider three aspects of such systems: the structures of review, the theories of review, and the forms of review. My aim is primarily one of description, aiming to highlight the ways in which the U.S. system resembles and differs from the newer systems of judicial review. The U.S. system of judicial review has close-and more distant-relatives in each of these categories. However, the U.S. system remains distinctive in that it combines …

The African System On Human And Peoples' Rights, Quasi-Constructivism, And The Possibility Of Peacebuilding Within African States, Obiora Chinedu Okafor

Articles & Book Chapters

This article examines the influence that IHIs (such as the African System on Human and Peoples' Rights) can exert within states, with the facilitative work of local popular forces, and relates that to the possibility of valuable IHI contributions to peacebuilding within deeply fragmented African states. Of all the existing approaches to the study of IHIs, constructivism comes the closest to accounting for the highly significant incidences of IHIjostered (and popular forces-facilitated) 'correspondence' that occurs outside the 'compliance radar'. In this sense the article is a contribution to the growing constructivist human rights and institutional literature sets. In particular the …

Minimum Wages, Inequality, And Globalization, T. H. Gindling, Katherine Terrell

Michigan Journal of International Law

The authors argue in this paper that the institution of the minimum wage is also an important factor in explaining changes in earnings inequality in Costa Rica, and that it can be an important factor in many developing countries. This study is a departure from the literature on institutions and development, which tends to analyze the impact of a more generally defined set of institutions using data on a number of countries. In this paper the authors analyze detailed changes in one institution in one country, using panel data over time. They argue that it is important to understand how …

Reconstruction And Constitution Building In Iraq, A. Kevin Reinhart, Gilbert S. Merritt

Vanderbilt Journal of Transnational Law

I would like to thank Vanderbilt Law School and all of the many sponsors for the invitation, and especially the Foreign Service Legal Society whose officers worked so hard to put this together. I appreciate very much the opportunity to talk to you all about Iraq. I need to begin with sort of a prelude: the things that were part of my training are in a way irrelevant to what I was doing this summer. I was not there in a professional capacity, as an Islamicist; I was there instead as a volunteer for the International Rescue Committee (IRC). I …

Law's Signal: A Cueing Theory Of Law In Market Transition, Robert B. Ahdieh

Faculty Scholarship

Securities markets are commonly assumed to spring forth at the intersection of an adequate supply of, and a healthy demand for, investment capital. In recent years, however, seemingly failed market transitions - the failure of new markets to emerge and of existing markets to evolve - have called this assumption into question. From the developed economies of Germany and Japan to the developing countries of central and eastern Europe, securities markets have exhibited some inability to take root. The failure of U.S. securities markets, and particularly the New York Stock Exchange, to make greater use of computerized trading, communications, and …

Extracting Oil From Turmoil: The Iraqi Oil Industry And Its Role As A Promising Future Player In The Global Energy Market, Ryan Frei

Richmond Journal of Global Law & Business

No abstract provided.

Interpreting Constitutions Comparatively: Some Cautionary Notes, With Reference To Affirmative Action, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

It has now become the conventional wisdom that many justices on the United States Supreme Court are thinking about the relevance of comparative constitutional law to the interpretation of the United States Constitution. An emerging conservative critique of doing so questions the democratic legitimacy of the practice. I believe that those questions are badly formed, but that other questions are worth raising about the (perhaps) emerging practice. In this comment I identify some reasons for caution about the use of transnational comparative law in interpreting domestic constitutions. Some reasons are institutional, others arise from the doctrinal context within which particular …

Checks And Balances In Wartime: American British And Israeli Experiences, Stephen J. Schulhofer

Michigan Law Review

Three years after an attack that traumatized the nation and prompted massive military and law-enforcement counter-measures, we continue to wrestle with the central dilemma of the rule of law. Which is more to be feared - the danger of unchecked executive and military power, or the danger of terrorist attacks that only an unconstrained executive could prevent? Posed in varying configurations, the question has already generated extensive litigation since September 11, 2001, and a dozen major appellate rulings. Last Term's Supreme Court trilogy - Rasul v. Bush, Hamdi v. Rumsfeld and Rumsfeld v. Padilla - clarified several important points …

Constitutionalization Of Human Rights In Post-Soviet States And Latin America: A Comparative Analysis, Rett R. Ludwikowski

Scholarly Articles

This Article consists of four parts. The first, which is more general, addresses the question to what extent the system of governance adopted by the countries of the two regions affected the record of the states' protection of human rights. For instance, this Article considers whether democratization of the political system necessarily results in better protection of human rights. The second part analyzes the placement of human rights in the framework of the Latin American and post-Soviet constitutions. The third part identifies and discusses the problem of individual and group rights, an issue crucial for both regions. The fourth part …

Book Review. Journal Of The National Human Rights Commission, India, Jayanth K. Krishnan

Articles by Maurer Faculty

No abstract provided.

Modernizing Muslim Family Law: The Case Of Egypt, Lama Abu-Odeh

Vanderbilt Journal of Transnational Law

he Author discusses the dynamics of family law reforms in modern Egypt as an instance of similar dynamics of reforms in other Muslim countries. The forces that push for reforms as well as those that try to limit them are also introduced.

The Author begins by describing the historical legal background shared by the vast majority of Muslim countries, including Egypt. An account of the general evolution of Islamic law-from a dominant system existing within an Islamic state to a subordinate system existing within an overall secularized legal system characterized by legal borrowing from European codes-is given. Islamic law has …

The Battle To Establish An Adversarial Trial System In Italy, William T. Pizzi, Mariangela Montagna

Publications

No abstract provided.

The Advantages Of The Civil Law Judiciary As The Model For Emerging Legal Systems, Charles H. Koch Jr.

Faculty Publications

No abstract provided.