Comparative and Foreign Law Commons^™

Mr. Trump's Contribution To Women's Human Rights, Barbara Stark

Hofstra Law Faculty Scholarship

Trump’s presidency is for those who support women’s human rights what Roe v. Wade was for abortion opponents, a “target,” as Justice Ruth Bader Ginsburg characterized Roe, an event that has focused and united people who did not realize how much they had in common. Just as Roe did for the radical right, this presidency has not only unified those concerned with women’s human rights, but galvanized them.

This Article focuses on three major areas of women’s human rights: civil and political rights; the right to be free from sexual harassment; and the right to health. The range of these …

La Méthode Comparative En Droit Public, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Environmental Principles In U.S. And Canadian Law, Errol E. Meidinger, Daniel Spitzer, Charles Malcomb

Contributions to Books

Published as Chapter 29 in Principles of Environmental Law, Ludwig Krämer & Emanuela Orlando, eds.

The Reform Of The Russian Legal Profession: Three Varying Perspectives, Susan Carle, Delphine Nougayrède

Scholarly Articles in Law Reviews & Journals

This Article was co-authored by Susan Carle (American University Washington College of Law), Gayane Davidyan (Moscow State University), Thomas McDonald and Delphine Nougayrède. In the Article the four authors debate various approaches to reforming the legal profession in Russia. They start out with a historical introduction followed by a presentation and discussion of the status at present. A large number of legal practitioners, including the international law firms, are currently unregulated and practice within what is sometimes referred to as the "free sector". The Russian government has for a number of years attempted to introduce reforms that would require these …

Legal Activism In The Face Of Political Challenges: The Nigerian Case, Jayanth K. Krishnan, Kunle Ajagbe

Articles by Maurer Faculty

Countries that move from authoritarianism to democracy often see increased rights-based, social justice lawyering after the transition. Given the new freedoms and opportunities present, this outcome is hardly surprising. However, relying on a literature and theoretical frame developed over the past two decades, this study argues that, in fact, such lawyering can have its historical roots in the legal activism that occurred during previous authoritarian periods. Consider Africa’s most populous country – Nigeria. Since gaining independence in 1960, Nigeria has witnessed, in total, nearly 30 years of military dictatorship. In 1999, the country adopted a democratic system of government, which …

Federalism And Gender Equality, Susan H. Williams

Articles by Maurer Faculty

Despite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on this intersection, to apply the insights of that literature to the case of Myanmar, and to offer a contribution concerning the theoretical connections between federalism and gender equality. The analysis generates four primary conclusions. First, federalism is inherently neither good nor bad for gender equality: it all depends on the details of the federal system and …

French Constitutionalism, Elisabeth Zoller

Articles by Maurer Faculty

From the Foreword:

We are particularly pleased that this first special issue gives the opportunity to celebrate the sixtieth anniversary of the Fifth Republic’s Constitution. Readers will find an enlightened vision of French constitutionalism, so patiently depicted by our colleague Elisabeth Zoller through a life of teachings and research, both in France and in the United States. Defined as “a political doctrine that aims to guarantee political freedom, i.e. the freedom we enjoy in respect of political power, as opposed to civil liberty, which we enjoy in respect of our peers”, constitutionalism has, in France, a profoundly unique character according …

Assessing Kenya’S Cooperative Model Of Devolution: A Situation-Specific Analysis, James T. Gathii, Harrison Mbori Otieno

Faculty Publications & Other Works

Kenya’s form of quasi-federalism termed devolution was introduced under the Constitution of Kenya (2010) (‘2010 Constitution’). This governance system establishes 47 county governments which are constitutionally independent sub-national units with direct election of county level leaders. Given the complexity of devolution’s relationship to national politics, as well as the broad variation in how devolution has unfolded in the 47 counties since 2013, this article argues in favour of a situation-specific assessment of devolution in Kenya. This analysis departs from the emerging scholarly consensus of devolution in Kenya represented in two predominant approaches. One approach contends that devolution in Kenya has …

Gender, Law, And Culture In The Legal Workplace: A Chilean Case Study, Ann C. Mcginley

Scholarly Works

"What has to change is the model of work. It can't be that in order to be a partner in a law firm, a woman has to learn to renounce her children. It is the men who have to renounce this work model and take equal responsibility for their children. It is very difficult for a society to do this. "

How do law and culture affect the behavior of actors on the ground? If culture and law interact, how does this interaction occur? This Article examines how gender and law affect lawyers working in a Latin American country Chile …

International Comity And The Non-State Actor, Microsoft: Why Law Enforcement Access To Data Stored Abroad Act (Leads Act) Promotes International Comity, Sabah Siddiqui

Catholic University Journal of Law and Technology

Currently large email service providers, such as Google, Microsoft and Yahoo are refusing to comply with warrants issued under the Secured Communications Act (“SCA”) because in many instances, the requested information may be stored in servers located abroad. In the dismissed Supreme Court case, In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corporation, the Supreme Court should have addressed whether an internet service provider must comply with a warrant issued under the SCA when the requested information is stored in a foreign country and whether enforcement of these warrants would be an impermissible …

Book Review: Legal Scholarship In Japan, Daniel H. Foote

Book Reviews

No abstract provided.

Chasing Shadows: The Economic And Noneconomic Thrust Of Bds, Harry G. Hutchison

Cardozo International & Comparative Law Review

Proponents of the Boycott, Divestment and Sanctions (BDS) campaign, in combination with left-wing activists and progressive theorists, sustain themselves through perceived adversity with the mantra that the universe evolves toward justice, which, in turn, allows for a focused indignation on Israel for alleged abuses of the Palestinian people. In this account, Israel's conduct thwarts desirable human progress and deserves reproof Alternatively, ire erupts because Israeli Jews are being, well, Jews. Despite persuasive evidence showing the contention that the Arabs of Palestine and the Land of Israel possess the same legal rights as the Jewish people contradicts principles of international law, …

Legal Pluralism And The Threat To Human Rights In The New Plurinational State Of Bolivia, James M. Cooper

Faculty Scholarship

Bolivia, the chronically poor, landlocked Andean country has long seen its indigenous populations marginalized, languishing in underdevelopment. Spanish colonialists destroyed any vestige of the vibrant, complex civilization that existed in the region – including the religious, political and legal systems in place for centuries. In December 2005, Evo Morales Ayma was the first elected President of indigenous descent. After leading the changes in the country’s Constitution, Morales continued to rule Bolivia until the writing of this Article. The New Political Constitution of Plurinational State of Bolivia of 2009 and a national law for community justice, signed into law by Morales, …

The Gatekeepers Of Crowdfunding, Andrew A. Schwartz

Publications

Securities crowdfunding is premised on two core policy goals: inclusivity and efficiency. First, crowdfunding is conceived as an inclusive system where all entrepreneurs are given a chance to pitch their idea to the "crowd." Second, crowdfunding is supposed to be an efficient way to channel funds from public investors to promising startup companies. There is a fundamental tension between these two policy goals, however. A totally inclusive system would ensure that platforms list any and every company that wants to participate. But platforms need to curate and select the companies they list in order to establish a reputation as a …

The Comparative Institutions Approach To Wildlife Governance, Dean Lueck

Texas A&M Law Review

This Article develops a comparative institutions approach to wildlife governance by examining the property rights to the habitat and the stocks of wild populations. The approach is based on the transaction cost and property rights approach and lies primarily in the traditions of Coase, Barzel, Ostrom, and Williamson. The approach recognizes the often-extreme costs of delineation and enforcement of property rights to wild populations and their habitats; thus, all systems are notably imperfect compared to the typical neoclassical economics approach. These costs arise because wildlife habitat and wildlife populations are part of the land which has many attributes and uses—most …

Regulatory Carrots And Sticks In Climate Policy: Some Political Economic Observations, Jason S. Johnston

Texas A&M Law Review

This Article sets out an informal political economic theory which explains the relative permanence of regulatory carrots—legislative subsidies and mandates for product use—versus the transience of regulatory sticks—traditional costly regulatory requirements. After setting out the elements of this theory, I illustrate it with the dramatic rise in the Obama Administration and abrupt cessation in the Trump Administration of attempts to use conventional U.S. environmental regulatory sticks to end the U.S. coal industry. The Article turns then to describe a concrete example of a regulatory carrot—the U.S. corn ethanol mandate—that has survived despite overwhelming evidence that its environmental benefits, if any, …

Unilateral Steps To End High Seas Fishing, Katrina M. Wyman

Texas A&M Law Review

In discussions about the overexploitation of the vast oceans that lie beyond national jurisdiction, one bold proposal is to close fishing entirely on the high seas. Existing research suggests that converting the high seas into a giant reserve for fish might increase overall global fish catches by boosting fish catches within the adjoining areas of the oceans under national control. This conversion also might help to protect marine biological diversity, which is particularly important in an era of climate change. This Essay identifies the potential that the United States—a significant importer of high seas fish—might unilaterally take steps to end …

The Peace Vs. Justice Puzzle And The Syrian Crisis, Paul R. Williams, Lisa K. Dicker, C. Danae Paterson

Faculty Publications

(Excerpt)

Those involved in peace negotiations often face the dilemma of balancing demands for justice with the imperative of stopping the conflict as quickly as possible. There are abiding ethical and moral debates surrounding this tension between peace and justice. In Syria—where the death toll has exceeded 470,000, 11 million have been displaced, and there are over 14,000 documented cases of death by torture—the peace versus justice puzzle is a living dilemma with which those involved in the peace process grapple with on a daily basis.

Is it morally permissible to allow conflict (and the attendant human suffering) to continue, …

A Critical Examination Of A Third Employment Category For On-Demand Work (In Comparative Perspective), Miriam A. Cherry, Antonio Aloisi

Faculty Publications

A number of lawsuits in the United States are challenging the employment classification of workers in the platform economy. Employee status is a crucial gateway in determining entitlement to labor and employment law protections. In response to this uncertainty, some commentators have proposed an “intermediate”, “third,” or “hybrid” category, situated between the categories of “employee” and “independent contractor.”

After investigating the status of platform workers in the United States, the authors provide snapshot summaries of five legal systems that have experimented with implementing a legal tool similar to an intermediate category to cover non-standard workers: Canada, Italy, Spain, Germany, and …

Faith-Based Mediation In The Pakistan-India Conflict, Sarah Khan

Cardozo Journal of Conflict Resolution

Section II of this Note explores the background history of Muslims and Hindus in India, the partition, and some of the most prominent issues that stand in the way of resolution. Section III discusses how religious mediation methods have been, and continue to be, used successfully in the contexts of other countries and conflicts. Section IV proposes that these methods be applied in the Pakistan-India situation to target specific issues facing the two countries, while incorporating the already proposed solutions that are on the table by politicians today.