Comparative and Foreign Law Commons^™

Chinese Mortgage Law: An American Perspective, Dale A. Whitman

Faculty Publications

My objective in this paper is to compare and to evaluate some of the features of the American and Chinese systems. I do so without any preconception that the American system provides better answers, but with the recognition that it is far more mature and provides more answers. Hence it provides a reference point from which the Chinese system can be considered. Perhaps each system has something to teach the other.

Capital Punishment: Corporate Criminal Liability For Gross Violations Of Human Rights, Diane Marie Amann

UC Law SF International Law Review

No abstract provided.

Holding Multinational Corporations Responsible Under International Law, Joel R. Paul

UC Law SF International Law Review

No abstract provided.

The Three Nixon Cases And Their Parallels In Malaysia, Myint Zan

St. Thomas Law Review

During the period from 1974 to 1982 the Supreme Court of the United States decided three cases in which the late Richard M. Nixon, the 37th President of the United States of America was involved as an appellant/ petitioner. All three cases decided by the United States Supreme Court bore the name of Richard Nixon in the title of the cases. This Article will attempt to discern some of the legal and constitutional issues which have arisen from these "Three Nixon" cases. Some of the issues in these cases would inevitably have arisen out of issues that are peculiar to …

Saving Rosencrantz And Guildenstern In A Virtual World? A Comparative Look At Recent Global Electronic Signature Legislation, Susanna Frederick Fischer

Scholarly Articles

This piece focuses on recent global legislative initiatives designed to establish a legal framework supporting electronic signatures. As many governments worldwide increasingly seek to encourage the growth of e-commerce, the enactment of such legislation has become a priority.

Lawyers Without Frontiers - A View From Germany, Martin Henssler, Laurel S. Terry

Faculty Scholarly Works

This article addresses the effect in Germany of the globalization of legal services. The first section of the article consists of reflections about the development of the German legal market in the past decade and how this development has been influenced by Anglo-Saxon law firms from the U.S. and England. The second section of this paper provides a more detailed analysis of the legal framework that governs the practice of foreign lawyers in Germany will follow. The third section of this paper addresses the issue of Multi-Disciplinary-Practices between lawyers and accountants. These MDPs are forbidden almost everywhere in the world …

The Best Of Times And The Worst Of Times: Lessons From Recent Reforms Of The French Retirement System, Kathryn L. Moore

Law Faculty Scholarly Articles

Principally because of increasing life expectancy and the fact that the baby boom generation is reaching retirement age and is followed by a much smaller generation, the American social security system is facing a long-term funding deficit. The Board of Trustees of the Federal Old-Age and Survivors and Disability Trust Funds predicts that unless corrective action is taken, social security benefits will exceed dedicated tax revenues by the year 2016, and the social security system will become insolvent, that is, unable to pay benefits in full, by the year 2038.

The United States is not alone in facing these circumstances. …

The Foreign Affairs Of Federal Systems: A National Perspective On The Benefits Of State Participation, Daniel Halberstam

Articles

In recent years, the constitutional law of foreign relations has come under intense academic scrutiny, and with it the traditionally accepted constitutional balance between the federal government and the States. In the course of this renewed debate, revisionist scholars have challenged the previously dominant view that States have no place in foreign affairs.

Latcrit Theory: Some Preliminary Notes Towards A Transatlantic Dialogue, Elizabeth M. Iglesias

University of Miami International and Comparative Law Review

No abstract provided.

Economic Restructuring And The European Monetary Union, Juan Luis Millan Pereira

University of Miami International and Comparative Law Review

No abstract provided.

Betraying Women In The Name Of Revolution: Violence Against Women As An Obstacle To Democratic Nation-Building In South Africa, Suzanne A. Kim

Cardozo Journal of Equal Rights & Social Justice

The article examines the contradiction between the formal legal advancements in gender equality and the persistent epidemic of violence against women in post-apartheid South Africa. Despite the African National Congress' (ANC) commitment to gender equality and the inclusion of women in political processes, the reality of widespread violence against women undermines the nation's democratic ideals and highlights the failure to address gender concerns within the broader nationalist agenda.

The Anatomy Of An Institutionalized Emergency: Preventive Detention And Personal Liberty In India, Derek P. Jinks

Michigan Journal of International Law

Despite many indications of an emerging transnational consensus on the scope of human rights law, fundamental disagreements persist. These disagreements are, in many respects, structured around important cleavages in the international community such as: North/South, East/West, and capitalist/socialist. Whether these cleavages are understood as cultural, economic, or political, international lawyers must develop a better understanding of the specific practices that generate divergent interpretations of human rights standards. Without such an understanding, these factions seem to underscore an irreducibly political conception of human rights. Indeed, the prospects of a global "community of law" turn on the degree to which fundamental differences …

International Protection Of The United States Trademarks: A Survey Of Major International Treaties, E. Brooke Brinkerhoff

Richmond Journal of Global Law & Business

Globalization of the world has forced the evolution of international norms. Never before has the world been able to communicate so quickly across borders. Instantaneous global communication-the ability to send and receive not just e-mail messages, but documents, videos, and software-enables this instant communication.

From Gender Apartheid To Non-Sexism: The Pursuit Of Women's Rights In South Africa, Penelope Andrews

Articles & Chapters

This article discusses the quest for women's rights in South Africa and how the transition from apartheid to democracy led to a commitment to gender equality as incorporated in South Africa's transitional and final Constitutions. This paper refers to the organizational attempts by women prior to and during the constitutional drafting process to ensure that the new Constitution embodied the aspirations and reflected the struggles for women's rights by women activists in South Africa. This article is divided into six sections. Section Two describes the legacy of apartheid for all women in South Africa. This section shows how the laws …

Irish Legal History: An Overview And Guide To The Sources, Janet Sinder

Faculty Scholarship

No abstract provided.

Harmonization Or Homogenization? The Globalization Of Law And Legal Ethics--An Australian Viewpoint, Steven Mark

Vanderbilt Journal of Transnational Law

This Article examines the pressures of globalization on the practice of law and legal ethics from an Australian perspective. The Article first examines the positive aspects of globalization and then turns to the potentially disruptive and homogenizing aspects of globalization upon indigenous and non-Western societies. Next, the Article considers how globalization threatens to disrupt tradition and culture in Western societies, specifically focusing on the tradition of the law and legal practice. Finally, the Author discusses the response of the Australian legal profession to the demands of globalization. The Author examines changes that have been implemented to the legal practice and …

A Constitutional Confluence: American ‘State Action’ Law And The Application Of South Africa’S Socioeconomic Rights Guarantees To Private Actors, Stephen Ellmann

Articles & Chapters

As constitutional protection of human rights expands around the world, the question of whether constitutional rights should protect people not only against state action but also against the conduct of private actors is once again timely. Few nations have so broadly, or so ambiguously, endorsed the application of constitutional guarantees to constrain private conduct (known outside the United States as "horizontality") as South Africa. The constitution approved in 1996 applies fully and without qualification to all "organs of state," and this term is defined in section 239 in potentially very broad terms, notably embracing "any other functionary or institution ... …

Fair Use And The Digital Distribution Of Music - Recording Industry Association Of America V. Napster, Inc. (A Comparative Analysis Of A Restraint On Copyright In The United States Of America And Trinidad And Tobago), Michelle Lisa Alexander

LLM Theses and Essays

The purpose of this thesis is to undertake a critical analysis of the Napster judgment and its treatment of the doctrine of fair use, to determine whether the doctrine can retain its integrity in the internet age. It is proposed that as technology advances, U.S. policymakers are moving away from the constitutional objectives of U.S. copyright law and are equating copyright interests with property rights, to the detriment of noncommercial users of copyrighted works. Further, it is suggested that the decision in the Napster litigation is important for the evolving landscape of U.S. copyright law, as it signals the difficulty …

Liberalization And Politics Of Environmental Management In Tanzania, Alicia Bosensera Magabe

LLM Theses and Essays

This thesis examines the factors that have prevented the development of an environmental protection legal and institutional regime in Tanzania. It argues that the central focus of economic reforms has been to kick-start the economy by increasing growth through the maximization of resource exploitation. As a result, concerns for environmental sustainability have been relegated to the periphery of the development agenda. Secondly, as a result of domestic resource scarcity brought on by the economic crisis, environmental policymaking has been held hostage to the influence of foreign donors whose agendas have often been at cross-purpose to environmental protection. Thirdly, the nature …

Evolution Of The Arm's Length Standard In The Us Transfer Pricing Legislation And Russian Arm's Length Perspective, Andrei A. Shutov

LLM Theses and Essays

This thesis analyzes the evolution of the arm's length standard (ALS) as the key element of the transfer pricing control system in the US. This thesis also addresses some issues on creation of transfer pricing legislation in the Russian Federation and focuses on three sets of problems. First, it provides the general outline of the legislative history of the ALS as well as the history of the ALS' application in the US, including an overview of landmark cases, which revealed some conceptual problems with respect to the ALS. Secondly, the thesis addresses core problems associated with the ALS, such as …

Reforming China's Partnership Law: Achievements, Problems And Prospects, Hongbing Fan

LLM Theses and Essays

This thesis proposes some measures to reform China's partnership law after providing an overview of China's partnership development in a historical perspective. After a brief introduction in Part I, Part II reviews the historical development of partnerships since the founding of the People's Republic of China. Much emphasis is put on significant changes since 1978. Part III examines the basic structure and content of the present laws and regulations on partnership in China. Part V highlights the problems and limits facing China's partnership law. Measures are proposed in Part IV with detailed reference to the United States partnership law. As …

The Impact Of Modernization And Development On Muslim Women In Egypt: A Legal Perspective, Mazahir Muhammed Ata El-Sid

LLM Theses and Essays

This study examines the effectiveness of the modernization theory in Egypt, a developing Muslim society. As in the case of other developing societies, Egypt's modernization is uneven. Therefore, I will examine modernization as it relates to Muslim women in Egypt in as far as they vary in their exposure to the modernizing influences of advanced technology. Egypt has experienced a variety of social, judicial, economic, demographic, and political modifications. These changes have greatly affected Muslim women in Egypt and their family life. Not all of the issues underlying modernization will be addressed in this research. Type of family structure and …

Legalize It? -Osp And Peer-To-Peer Network Liability For Online Music Copyright Infringements In The United States And Germany, Christian Nils Jochen Engelhardt

LLM Theses and Essays

It may be useful to explain why a comparative approach was chosen. It is easy and comfortable to get caught up in one's own legal system and not look abroad. It is often difficult enough to understand and apply one’s own laws accurately and the study of a foreign legal system may seem an effort too great. Yet, this reluctance to look beyond the familiar is fatal to legal development and improvement since entirely new ideas are rare in the field of law and the main source of change and new approaches is borrowing from another legal system. If one …

China And Wto: The Impact Of International Norms On China’S Foreign Trade Legal Reform, Yun Zeng

LLM Theses and Essays

This thesis examines the impact of the GATT/WTO system on China’s foreign trade legal reform and further explains the beneficial effects of China’s membership for themselves, the WTO, and other participating nations. The thesis elaborates briefly on the history of China’s effort to become a member of the WTO. It further examines major obstacles to China’s admission to WTO in terms of compatibility between the pre-form Chinese foreign trade regime and the WTO framework. The thesis then describes China’s reform efforts in its foreign trade legal regime since its application to the GATT in 1986 and assess the influence of …

Globalization And Tax Competition: Implications For Developing Countries, Reuven S. Avi-Yonah

Articles

The current age of globalization can be distinguished from the previous one (from 1870 to 1914) by the much higher mobility of capital than labor (in the previous age, before immigration restrictions, labor was at least as mobile as capital). This increased mobility has been the result of technological changes (the ability to move funds electronically), and the relaxation of exchange controls. The mobility of capital has led to tax competition, in which sovereign countries lower their tax rates on income earned by foreigners within their borders in order to attract both portfolio and direct investment. Tax competition, in turn, …

Challenges To Fragile Democracies In The Americas: Legitimacy And Accountability, Martin Böhmer, A.R. Brewer-Carías, Helen Beatriz Mack Chang, Sarah H. Cleveland, Francisco Cox, Lourdes Flores Nano, H.W. Perry Jr., Steven Ratner, Carlos Rosenkrantz, Roberto Saba, Dean Michael Sharlot, Nicolas Shumway, Gerald Torres

Faculty Scholarship

February 25, 2000, the University of Texas School of Law hosted an extraordinary gathering to discuss the fragility of democracies in Latin America and the dangers that they face. The event was sponsored by several institutions at the University of Texas: the School of Law, the Institute of Latin American Studies, the Office of the Provost, the College of Liberal Arts Democracy in the Third Millennium Program, and the International Law Society at the School of Law.

Commentary: International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

Articles

The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection—or variations in that protection—hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing …

Faulty Adversarial Performance By Criminal Defenders In The Crown Court, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Who is the more able advocate, the lawyer in the United States or the barrister in England and Wales? Answering that question is extremely difficult because of a multitude of differences in the procedural regimes in which each works and in the scope of each's responsibility. Yet, one facet stands out, like a full moon in a dark sky: The comparative number of defenders who on appeal have been accused of having provided inappropriate representation in the process leading to conviction . . . Part 1 discusses the procedural hurdles that make challenging the trial barrister's conduct more difficult than …

Guarantee Of Basic Human Rights : A Comparative Study Between Islamic Law, International Charters And Algerian Constitution, Yassine Belkamel

Student Works (2000-2009)

This study deals with the issue of a comparative analysis of the guarantee of basic human rights in Islamic law, International Charter and Algerian constitution. This study finds its merit in the significance of the issue of human rights and its relevancy to our status quo. Notwithstanding, the multidimensionality of the topic of human rights, the researcher opts to focus on one of its important dimensions that is the guarantee of human rights. Historically speaking this issue was not extensively studied in depth by our classical scholars and jurists. Therefore, there is a need for in depth studies on this …

Miranda In Comparative Law, Stephen C. Thaman

All Faculty Scholarship

Not only have the Miranda warnings become a recognized procedure in police interrogations in the United States, but they have been adopted or strengthened over the years in formerly inquisitorial countries like Germany, Italy, Spain and most recently France, and are now recognized as having constitutional status. This article discusses the protections afforded to criminal suspects and defendants overseas when faced with interrogation by police, prosecutors, investigating magistrates or judges of the investigation. It compares the admonitions given to such suspects with those provided in the Miranda decision and discusses their constitutional, or statutory status. It further discusses when such …