Comparative and Foreign Law Commons^™

Glittery Promise Vs. Dismal Reality: The Role Of A Criminal Lawyer In The People's Republic Of China After The 1996 Revision Of The Criminal Procedure Law, Ping Yu

Vanderbilt Journal of Transnational Law

In this Article, the Author examines the recent revisions to the Chinese Criminal Procedure Law. The Author maintains that while the revisions were intended to promote a more equitable criminal justice system, the political climate in fact has rendered the revisions a step down for both defense attorneys and defendants. The Author analyzes different aspects of the revised law in order to support this point. In his conclusion, the Author suggests some changes to the criminal procedure law that may help to bring the Chinese defense system up to international standards.

Japan's Communications Interception Act: Unconstitutional Invasion Of Privacy Or Necessary Tool?, Lillian R. Gilmer

Vanderbilt Journal of Transnational Law

In August 1999, Japan became the last of the G8 nations to pass legislation to allow law enforcement to wiretap communications. For some, passage of the law was long overdue; for others, its passage marked the beginning of an impermissible government encroachment on civil rights. This Note examines Japan's Communications Interception Act, the forces in Japanese society creating the need for the law, and the reasons why the law is being challenged. Part II examines the policy behind the law, its history, and public reaction to the law. Part III presents the history of organized crime in Japan, and a …

The Jury's Role In Administering Justice In The U.S. Introduction To Saint Louis Public Law Review Jury Issue, Stephen C. Thaman

All Faculty Scholarship

This introduction to the special jury issue of Saint Louis University’s Public Law Review briefly discusses the Conference “Lay Participation in the Criminal Trial in the Twenty-First Century,” in which all of the contributors to this issue participated. The conference took place at the International Institute for Higher Studies in the Criminal Sciences in Siracusa, Italy from May 25-29, 1999. It also discusses select papers and perspectives on the American jury system published in this issue of the journal.

Latin America's First Modern System Of Lay Participation: The Reform Of Inquisitorial Justice In Venezuela, Stephen C. Thaman

All Faculty Scholarship

This article describes the new Venezuelan jury and mixed court systems that were introduced by Codigo Organico Procesal Penal in 1998, in the context of the code’s radical transition to accusatorial and adversarial procedure.

Le Tir Manqué De La Directive Européenne Sur Le Droit D’Auteur Dans La Société De L’Information, Lucie Guibault

Articles, Book Chapters, & Popular Press

Entre 1991 et 2001, le Conseiletle Parlement européens ont adopté sept directives touchant au droit d’auteur. L’objectif premier detelles directives est d’assurer le bon fonctionnement du Marché intérieureuropéen, en d’autrestermes d’assurer que biens, services, personnes et capitaux peuvent circuler librementet sans discrimination à l’intérieur du territoire de l’Union européenne. Naturellement, desconsidérations d’ordre culturel ne sont pas étrangères à l’adoption des directives dans le domaine du droit d’auteuret des droits voisins. Jusqu’ici pourtant, les directives relatives au droit d’auteuretaux droits voisins ont harmonisé ce secteur du droitde manière «verticale», c’est-à-dire qu’elles ont eu pour but derégler des questions de nature ponctuelle …

Hired Guns And Smoking Guns: Mccabe V British American Tobacco Australia Ltd, Camille Cameron

Articles, Book Chapters, & Popular Press

Significant ethical and procedural issues raised in the case of McCabe v British American Tobacco Australia Services Ltd - history of events leading to the Supreme Court of Victoria decision, particularly the implementation of the controversial 'Document Retention Policy' - procedural issues, including the role and purpose of discovery, nature of the striking out remedy and extent to which the adversarial system might be to blame for some of the conduct of the defence and its solicitors - ethical issues raised in the case - close links between American and Australian tobacco litigation and the influence of American tobacco lawyers …

Federalism, Democratization, And The Rule Of Law In Russia, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Combining the approaches of three fields of scholarship - political science, law and Russian area studies - the author of this 2002 Oxford University Press book explores the foundations and future of the Russian Federation. Russia's political elite have struggled to build an extraordinarily complex federal system, one that incorporates eighty-nine different units and scores of different ethnic groups, which sometimes harbor long histories of resentment against Russian imperial and Soviet legacies. This book examines the public debates, official documents and political deals that built Russia's federal house on very unsteady foundations, often out of the ideological, conceptual and physical …

Putin's Federal Reforms: A Legal-Institutional Perspective, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

The first year of Putin's presidency proved to be the most concerted and fundamental shake-up of federal relations in Russia since the 1993 Constitution. This paper examines this transition in detail, focusing attention on the legal-institutional aspects of this dramatic shift in policy. First, the end of Yeltsin's 'parade' - of sovereignties, bilateral treaties and special agreements - is examined. Next, attention is paid to Putin's early decrees: 'positive' decrees creating the seven federal districts and federal envoys, and 'negative' decrees that annulled regional laws and legal acts judged by him not to be in conformity with federal law. Finally, …

Comparing The Two Legal Realisms—American And Scandinavian, Gregory S. Alexander

Cornell Law Faculty Publications

Stakeholder Protection In Germany And Japan, Mark J. Loewenstein

Publications

This Essay considers the stakeholder debate in the context of the German and Japanese legal systems. Although, nominally, corporations in those countries must operate in the interests of shareholders, in fact nonshareholder constituencies have considerable influence on corporate decision makers. Of equal importance, weak securities markets and ineffective or nonexistent legal protections for shareholders are also important factors in strengthening the position of nonshareholder constituencies and freeing directors to consider their interests. Thus, the stakeholder debate is more of an issue in the United States and Britain, where more shareholder-centic models flourish.

No. 1 - Legal Systems In Transition, Ivana Janu, Josef Bejcek, Gabriel M. Wilner

Occasional Papers Series

A January 24-28, 2000 visit by Justice Ivana Janu, Dean Josef Bejcek, and some of the Czech colleagues to the Dean Rusk Center and the University of Georgia provided an occasion for the exchange of ideas concerning transition in the legal structure and content in the former Socialist states of central and eastern Europe. Justice Janu and Dean Bejcek prepared papers and agreed to their publication. The availability of these two important papers, one on constitutional courts and the other on transitions in commercial law, rendered to the Rusk Center the necessary impetus for the creation of the Occasional Papers …

Renegotiating Responsibility After Apartheid: Listening To Perpetrator Testimony , Mark Sanders

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Race-Ing And Engendering The Nation-State In Aotearoa/New Zealand , Nan Seuffert

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Globalization Of Insider Trading Prohibitions, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

No abstract provided.

Rethinking The United States First-To-Invent Principle From A Comparative Law Perspective: A Proposal To Restructure § 102 Novelty And Priority Provisions, Toshiko Takenaka

Articles

This Article first examines the novelty and priority provisions of first-to-file countries, and then compares them with U.S. counterparts to identify major differences and determine why these differences result. The Article discusses the origins of the complex structure adopted by § 102 to define prior art and the difficult interpretation given to terms used in the novelty definition. This Article then reviews the USPTO's practice of the novelty examination and the priority determination in interference proceedings. This review confirms the first-to-file patent professional's perception that the United States, in fact, follows the first-to-file principle, although it also provides an exception …

Constitutional Values And The Ethics Of Health Care: A Comparison Of The United States And Germany, William J. Wagner

Scholarly Articles

In the first section, this essay will consider questions the new era in health care poses for a health-care ethics of ends. The second section will address the question this emerging era raises for a health-care ethics of duty. Under the rubric of an ethics of ends, the essay examines, more particularly, the ends of health and efficiency. Under that of duty, it addresses the duties of respect for the dignity of the human person; respect for the covenant of treatment; and respect for justice in distribution. In each case, it seeks to identify the basis for an adequate response …

Politicization And Judicialization Of The U.S. Chief Executive’S Political And Criminal Responsibility: A Threat To Constitutional Integrity Or A Natural Result Of The Constitution’S Flexibility?, Rett R. Ludwikowski

Scholarly Articles

This article attempts to analyze to what extent the scope of executive privilege, constitutionally committed to the executive branch, is determined by judicial process or by purely political factors. It opens with a brief report on the process of formation of the Presidential model of government and the system of checks and balances in the United States. Focusing on the checks imposed on the Executive, this article distinguishes those restraints that are clearly constitutionalized, or stemming from judicial determination of their constitutionality, and those which are the result of judicial interpretation of the beneficial aspects of public policy or political …

The Globalization Of Corporate And Securities Law: An Introduction To A Symposium, And An Essay On The Need For A Little Humility When Exporting One's Corporate Law, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

No abstract provided.

Official Privilege: State Security And The Right To A Fair Trial In The Usa, Stephen C. Thaman

All Faculty Scholarship

The emphasis of this paper is on the effect of the state claiming a privilege of national security in a criminal case, either to: (1) prevent the defendant from gaining discovery of classified information which could be important in defending against the criminal charges; or (2) prevent the defendant from introducing classified evidence in his/her own defense, access to which has usually been gained by virtue of the defendant’s own activity with the intelligence services (CIA, FBI) or other police agencies. The state often claims national security in situations where the state itself is either dealing with criminals or using …

Book Review. Courts And Transition In Russia: The Challenge Of Judicial Reform, By Peter H. Solomon, Jr. And Todd S. Foglesong, Stephen C. Thaman

All Faculty Scholarship

This is a book review applauding Peter H. Solomon and Todd S. Foglesong’s book Courts and Transition in Russia: The Challenge of Judicial Reform, written by Professor Stephen C. Thaman. Professor Thaman provides his thoughts on the possibility of Russian reform success.

Super Regulator: A Comparative Analysis Of Securities And Derivatives Regulation In The United States, The United Kingdom, And Japan, Jerry W. Markham

Faculty Publications

This article describes the development of the competing regulatory bodies for banking, insurance, securities and derivatives. It then focuses on the regulatory roles of the Securities and Exchange Commission ("SEC") and the Commodity Futures Trading Commission ("CFTC"). The competition between those two agencies and its effects are described. After that review, the article examines the roles of the FSA-GB and FSA-Japan. Finally, the article discusses the arguments favoring and disfavoring competitive regulation and tries to discern whether a unified regulatory structure such as that in Japan and England is preferable to the competitive approach of the SEC and CFTC. The …

Credit Cards And Debit Cards In The United States And Japan, Ronald J. Mann

Faculty Scholarship

The widespread use of cards is one of the most salient features of consumer retail payment systems in the United States. American consumers use those cards to pay for about one-fourth of their retail purchases each year. And this is not a static phenomenon; among other things, the use of debit cards, though still relatively small, is rising rapidly. That pattern of use is not, however, typical of other countries. Even in some highly industrialized nations, consumers use cards to pay for purchases much less frequently. Statistics from the Bank for International Settlements, for example, suggest about sixty card-based payment …

A Common Private Law For Europe, Alan Watson

Scholarly Works

A satisfactory private law for Europe is not primarily to be sought for in the most common solutions, themselves the result of borrowing. Nor in established rules, themselves the result of longevity, and lack of governmental incentive in innovating. Nor should it be sought in intermediate positions of various mixed systems, themselves the results of the features just above described. Rather it is to be found in the need for authority. This means that a common law for Europe requires the acceptance of a uniform system of adjudicating differences within a standard framework of the necessary sources of law. Authority …

Protecting Member State Autonomy In The European Union: Some Cautionary Tales From American Federalism, Ernest A. Young

Faculty Scholarship

The European Union's ongoing "Convention on the Future of Europe" must tackle a fundamental issue of federalism: the balance between central authority and Member State autonomy. In this article, Ernest Young explores two strategies for protecting federalism in America - imposing substantive limits on central power and relying on political and procedural safeguards - and considers their prospects in Europe. American experience suggests that European attempts to limit central power by enumerating substantive "competencies" for Union institutions are unlikely to hold up, and that other substantive strategies such as the concept of "subsidiarity" tend to work best as political imperatives …

An Introduction To The Federal Constitutional Court, Donald P. Kommers

Journal Articles

This essay introduces the Federal Constitutional Court, briefly surveying the Court’s legal heritage, the history of its founding, its jurisdiction, and its structure.

Some Realism About Comparativism: Comparative Law Teaching In The Hegemonic Jurisdiction, Ugo Mattei

Faculty Scholarship

No abstract provided.

Toward A Nonzero-Sum Approach To Resolving Global Intellectual Property Disputes: What Can We Learn From Mediators, Business Strategists, And International Relations Theorists, Peter K. Yu

Faculty Scholarship

Countries differ in terms of their levels of wealth, economic structures, technological capabilities, political systems, and cultural tradition. No two countries have the same needs or goals. As a result, policymakers face different political pressures and make different value judgments as to what would best promote the creation and dissemination of intellectual works in their own countries. These uncoordinated judgments eventually result in a conflicting set of intellectual property laws around the world.

As countries become increasingly interdependent in this globalized economy, these conflicting laws create tension and sometimes result in disputes. To minimize differences and prevent conflicts, countries use …

Constitutional Design: Proposals Versus Processes, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Trade-Related Aspects Of Intellectual Property Rights And Biotechnology: European Aspects, John Linarelli

Scholarly Works

There does not seem to be a widely held view among WTO members of the proper role and scope of TRIPS. One of the main reasons why TRIPS is controversial is because it allocates rights in innovation, some would say beyond the bounds of what a trade agreement should seek to do. The lines of the debate are often conceptualized in terms of 'developing' versus 'developed' country differences. One of the major areas of disagreement is how TRIPS deals with rights in biotechnology. Some developing countries are relatively rich in biodiversity and traditional knowledge but poor in capital and scientific …

Book Review. Cross-Border Collateral: Legal Risk And The Conflict Of Laws. Edited By Richard Potok., Hannah Buxbaum

Articles by Maurer Faculty

No abstract provided.