Comparative and Foreign Law Commons^™

Masthead Volume 9

Notre Dame Journal of International & Comparative Law

No abstract provided.

Opportunities And Challenges Seeking Accountability For War Crimes In Palestine Under The International Criminal Court's Complementarity Regime, Thomas Obel Hansen

Notre Dame Journal of International & Comparative Law

The International Criminal Court (ICC) is currently conducting a preliminary examination of the situation in Palestine, involving allegations against Israeli authorities and military personnel as well as what the Prosecutor refers to as “Palestinian armed groups.” The preliminary examination creates a framework for advancing accountability norms in the Palestinian context and globally for international crimes committed by States with significant resources. However, the road to accountability is anything but straightforward. Indeed, several challenges relating both to the applicable legal framework and broader policy issues, could delay—or potentially even undermine—the accountability process, if not properly understood and managed. One particularly important …

Funding Mental Healthcare In The Wake Of Deinstitutionalization: How The United States And The United Kingdom Diverged In Mental Health Policy After Deinstitutionalization, And What We Can Learn From Their Differing Approaches To Funding Mental Healthcare, Catherine Ryan Gawron

Notre Dame Journal of International & Comparative Law

Deinstitutionalization was a mass movement away from institutional-focused mental healthcare in the mid-to-late twentieth century, which changed the dynamic of mental healthcare service provision in both the United States and United Kingdom. This Note analyzes the history and effects of deinstitutionalization on subsequent mental healthcare policy in those two nations, highlighting the key role of funding in shaping the success of mental health policy and programming.

The focus on mental healthcare funding structures provides a lens to analyze the differences in financial funding, resource allocation, infrastructure development of community-based or alternative care services, and government and social support of mental …

Private Prisons & Human Rights: Examining Israel's Ban On Private Prisons In A Us Context, Brandy F. Henry

Concordia Law Review

This article users a human rights lens to examine prison privatization in the US. The analysis builds on the 2009 Israeli Supreme Court ruling against the privatization of prisons, which relied on the human rights theories of both decommodification and dignity. The Israeli interpretations of dignity, and decommodification theory as related to the privatization of prisons suggest that prison privatization results in the commodification of both the state and prisoner, through the improper delegation of governmental power, which results in an infringement of the prisoner's human right to dignity. This argument is examined in the context of US statute and …

Sentencing Persons Convicted Of Minor Offences In Ghana: Reducing Judicial Over-Reliance On Imprisonment, Nenyo Kwasitsu

LLM Theses

This thesis argues that there is overuse of imprisonment for minor offenders in Ghana. These are offenders whose punishments go up to 3 years of jail time, essentially offending mainly for reasons of material poverty. Statutory sentencing provisions have essentially limited judges to impose jail terms. It is argued that one way to decongest Ghana’s prisons is to consider the institutionalization of a regime of community service orders and probation, the administration of which would equip the offenders with income-earning skills while they also reform. Drawing on Kenya, a country that has achieved reasonable success in this reform effort, this …

Syrian Crisis Representation In The Media: The Cnn Effect, Framing, And Tone, Savannah S. Day

Venture: The University of Mississippi Undergraduate Research Journal

Over the past seven years of the Syrian Civil War, Syrian refugees have been painted in a negative light by news media outlets around the world. History of media coverage regarding global humanitarian crises shows that with various tools and processes, media can shape public opinion and policy in whichever direction it desires, and oftentimes policymakers and the public are quick, as well as emotional, to react. In this paper, my objectives are to analyze specific examples of this CNN Effect phenomena within news coverage of the Syrian refugee crisis, as well as generally explain the negatively correlating relationship between …

Executive Rulemaking And Democratic Legitimacy: "Reform" In The United States And The United Kingdom's Route To Brexit, Susan Rose-Ackerman

Chicago-Kent Law Review

Established public law principles are under strain from the prospect of Brexit in the United Kingdom and the Trump Administration in the United States. In the United Kingdom the Parliament is playing an increasingly important role in overseeing the Government, and the judiciary is beginning to support democratic accountability in executive policymaking. In the United States, possible statutory changes and the power of the president to reshape the public administration are of concern. Although in the United States the most draconian measures will likely die with the return of the House to Democratic Party control, they may remain on the …

In Whose Interests Should A Company Be Run? Fiduciary Duties Of Directors During Corporate Failure In India: Looking To The West For Answers, Gautam Sundaresh

Michigan Business & Entrepreneurial Law Review

This Comment looks at the debate as it has played out in the legal jurisprudence of the U.S. and the U.K. The analysis of each considers the three financial stages of a corporation’s existence that are specifically addressed in the debate today, i.e.: (i) solvency; (ii) insolvency; and (iii) the zone of insolvency. After setting out the current position, this Comment specifically addresses the various shortcomings and criticisms of the models adopted by each jurisdiction and offers observations on the status quo and the implementation of these models. On this basis, this Comment goes on to propose a model to …

Digital Colonialism: The 21st Century Scramble For Africa Through The Extraction And Control Of User Data And The Limitations Of Data Protection Laws, Danielle Coleman

Michigan Journal of Race and Law

As Western technology companies increasingly rely on user data globally, extensive data protection laws and regulations emerged to ensure ethical use of that data. These same protections, however, do not exist uniformly in the resource-rich, infrastructure-poor African countries, where Western tech seeks to establish its presence. These conditions provide an ideal landscape for digital colonialism.

Digital colonialism refers to a modern-day “Scramble for Africa” where largescale tech companies extract, analyze, and own user data for profit and market influence with nominal benefit to the data source. Under the guise of altruism, large scale tech companies can use their power and …

Promoting Predictability In Business: Solutions For Overlapping Liability In International Anti-Corruption Enforcement, Andrew T. Bulovsky

Michigan Journal of International Law

This Note evaluates solutions to the problems of overlapping liability in general and multi-jurisdictional disgorgement in particular. Part I traces the origins of international anti-corruption efforts and provides an overview of the Foreign Corrupt Practices Act (the “FCPA”). It then discusses the two most significant international anti-corruption conventions: the OECD’s Convention on Combatting Bribery of Foreign Officials in International Business Transactions (the “OECD Convention”) and the United Nations Convention Against Corruption (“UNCAC”). Part II lays out the problems created by the lack of a formal mechanism to prevent overlapping liability— a phenomenon that violates the common law concept known as …

Transformative Constitutions And The Role Of Integrity Institutions In Tempering Power: The Case Of Resistance To State Capture In Post-Apartheid South Africa, Heinz Klug

Buffalo Law Review

No abstract provided.

Is China A “Rule-By-Law” Regime?, Kwai Hang Ng

Buffalo Law Review

No abstract provided.

Why Didn't The Common Law Follow The Flag?, Christian R. Burset

Journal Articles

This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British …

From Nuisance To Environmental Protection In Continental Europe, Vanessa Casado-Pérez, Carlos Gomez Liguerre

Faculty Scholarship

This paper analyzes the evolution and complexity of the legal response to neighboring conflicts in European civil law countries. All of the civil codes analyzed (France, Germany, Spain, Netherlands, and Catalonia) are based on Roman Law rules that are not always clear. The fuzziness of those Roman Law rules explains, in part, why despite this common origin, the Civil Codes did not respond homogeneously to nuisances. The first subsection briefly describes the institution of nuisance in Roman Law. Then, the paper describes the original codification of nuisance and the changes in the treatment of this institution. After assessing the initial …

The Asean Way Or No Way? A Closer Look At The Absence Of A Common Rule On Intellectual Property Exhaustion In Asean And The Impact On The Asean Market, Irene Calboli

Faculty Scholarship

The Symposium in which this essay is published features recent developments in the law of intellectual property (IP) in Asia. In this essay, I focus on the Association of South East-Asian Nations (ASEAN), a region that I have had the opportunity to visit extensively in the past several years. In particular, I analyze the enforcement of IP rights in the context of the application of the principle of IP exhaustion in individual ASEAN Members, and the relationship between this principle and free movement of goods within the ASEAN region. In the past, I have addressed the same topic with respect …

Implementing The Extraterritoriality Principle To Strengthen Competition Law Enforcement In Indonesia In The Aec Era: A Comparative Study, Muhammad Rifky Wicaksono, Kusuma Raditya, Laurensia Andrini, Muhammad Hawin

Indonesia Law Review

The regional economic integration that ensues from the ASEAN Economy Community will provide its members not only with boundless opportunities for economic growth, but also with unprecedented challenges. The demands of a more interconnected regional economy would require the Indonesian government, as guardians of the competitive process in the Indonesian market, to protect it from anticompetitive conduct caused from both within and outside of its borders. However, there is a major gap since Indonesia’s current competition law does not provide KPPU with the jurisdiction to investigate, prosecute or punish violations committed by business actors located outside of Indonesia’s territory. Thus, …

The Nationalization Of The Dutch Owned Plantations In North Sumatra: To Whom The Communal Land Belong?, Edy Ikhsan

Indonesia Law Review

This article has been developed through an analysis of primary and secondary sources concerning the nationalization’s policy of the Dutch enterprises in Indonesia as had been conducted by Soekarno’s regime back in 1958. The impact of this said policy has been so much felt very strongly to these days, most especially on the ex-concessionary lands of the Dutch enterprises in North Sumatera. The flaws made by the Indonesian government in interpreting the terminology of Concession to the Cultivation Rights on Lands, in the said nationalization policy, have created various endless conflicts among central and regional governments, state-owned enterprises, the Sultanates …

Mexico’S National Anti-Corruption System: Reaching The Finish Line?, Dr. Roberto Carlos Fonseca

University of Miami Inter-American Law Review

No abstract provided.

Simple Legal Writing Can Improve Business Outcomes In Latin America, Leon C. Skornicki

University of Miami Inter-American Law Review

No abstract provided.

Banking On Blockchains: A Transformative Technology Reshaping Latin American And Caribbean Economies, Robert W. Rust Ii

University of Miami Inter-American Law Review

No abstract provided.