Comparative and Foreign Law Commons^™

Adoption And The Limits Of Contract In Victorian Adoption Case Law And George Eliot's Silas Marner, Sarah Abramowicz

Law Faculty Research Publications

No abstract provided.

Religious Associational Rights And Sexual Conduct In South Africa: Towards The Furtherance Of The Accommodation Of A Diversity Of Beliefs, Shaun De Freitas

BYU Law Review

No abstract provided.

The Law And Economics Of (Functional) Antitrust Standing In The United States And The European Union, Jeffrey L. Harrison

UF Law Faculty Publications

To date, and despite pressures toward convergence, the United States and the European Union have taken different paths with respect to the enforcement of antitrust laws by private parties and, therefore, differ dramatically in levels of functional standing. U.S. law is more encouraging to private enforcement than E.U. law but has a narrower view of whom those private parties are permitted to be. In the European Union, the eligible parties are broad but the motivation of any single party to bring an action is quite low. In the United States, the substantive law and much of the procedural law flow …

An Expanding Human Rights Corpus: Sexual Minority Rights As International Human Rights, Xavier B. Lutchmie Persad

Cardozo Journal of Equal Rights & Social Justice

The article argues that sexual minorities are entitled to equal rights under principles of human dignity, equality, and non-discrimination. While international human rights frameworks like the Universal Declaration of Human Rights (UDHR) and regional systems, particularly the European Union’s Charter of Fundamental Rights, provide some protections, sexual minorities remain vulnerable due to the lack of explicit inclusion in most treaties. The European Court of Human Rights (ECtHR) and the UN Human Rights Committee (HRC) have advanced protections through jurisprudence, but significant gaps persist, especially for transgender and intersex individuals. The article advocates for a specialized treaty to address these disparities …

Competition Law Reform In Turkey: Actors, Networks, Translations, Ziya Umut Turem

Indiana Journal of Global Legal Studies

This article explains the shift from an initially European-oriented and politically motivated competition law, toward a U.S. style and aspiringly apolitical competition regime in Turkey. Translation is used as an analytic to capture the complex processes of such a shift. The article argues that this shift can be explained first by the broad turn toward the U.S. as a source of state expertise and knowledge production in the context of the Cold War. This broad historical dynamic could only be activated, however, by the emergence of a critical mass of policy entrepreneurs and state officials shifting the momentum of policy …

The Persistence Of National Peculiarities: Translating Representative, Anna Katharina Mangold

Indiana Journal of Global Legal Studies

This paper explores representative environmental action in international, European Union, and German environmental law as an example of '7egal translation." The Aarhus Convention, dating from 1998, requests signatory parties to provide environmental NGOs with wide access to justice so that the protection of the environment can be controlled by the judiciary. Both the European Union and Germany have implemented the provisions of the Aarhus Convention into their respective legal orders. This process of implementation can be considered as "legal translations." The argument of this paper is that a perspective of '7egal translation" provides new vistas on the various intertwined layers …

The Model Penal Code And The Dilemma Of Criminal Law Codification In The United States, Stephen C. Thaman

All Faculty Scholarship

In this chapter, the author discusses the legal international comparative study of codification. The author draws upon insights gained from the IACL Thematic Conference of 2012.

Marxist And Soviet Law, Stephen C. Thaman

All Faculty Scholarship

This chapter addresses both the Marxist critique of law before the Russian Revolution and the development of the Soviet Law Structure. It discusses the three main trends in Soviet Criminal Law before elucidating how these trends affected the General Part and the Special Part of Soviet Criminal Codes and overall Soviet criminal policy.

Book Review. The Undignified Part Of Constitutional Analysis, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

Grappling At The Grassroots: Access To Justice In India's Lower Tier, Jayanth K. Krishnan, Shirish N. Kavadi, Azima Girach, Dhanaji Khupkar, Kilindi Kokal, Satyajeet Mazumdar, Nupar, Gayatri Panday, Aatreyee Sen, Aqseer Sodhi, Bharati Takale Shukla

Articles by Maurer Faculty

From 2010 to 2012, a team of academic and civil society researchers conducted extensive ethnographies of litigants, judges, lawyers, and courtroom personnel within multiple districts in three states: Maharashtra, Gujarat, and Himachal Pradesh. This Article provides an in-depth account of the everyday struggles these actors face in the pursuit of their respective objectives. The findings illustrate a complex matrix of variables-including infrastructure, staffing, judicial training and legal awareness, costs and continuances, gender and caste discrimination, power imbalances, intimidation and corruption, miscellaneous delays, and challenges with specialized forums-impact access to justice in the lower tier. The results of this study offer …

Ex Ante Versus Ex Post Deliberations: Two Models Of Judicial Deliberations In Courts Of Last Resort, Mathilde Cohen

Faculty Articles and Papers

This Article discusses supreme and constitutional courts’ internal organizational cultures, that is, the way in which justices organize their work and establish informal decision-making norms. Courts of last resort are often presented as exemplary deliberative institutions. The conference meeting, which convenes judges in quiet seclusion to debate, has been glorified as the most significant step in a court’s decision-making process. Based in part on qualitative empirical research, I argue, however, that French, American, and European Justices may not deliberate in the full sense that deliberative democrats have theorized. The Article distinguishes two types of high court deliberations, which I call …

Two Direct Rights Of Action In Child Support Enforcement, Margaret Ryznar

Catholic University Law Review

No abstract provided.

Multiculturalism And Constitutionalism In Latin America, José Antonio Aguilar Rivera

Notre Dame Journal of International & Comparative Law

José Antonio Aguilar Rivera discusses recent reforms to the constitutions of several Latin American states. According to Aguilar Rivera, these reforms tend to recognize and protect the multiethnic and multicultural nature of Latin American socieites. While acknowledging that some have lauded these changes as progressive moves towards a more developed form of democracy, Aguilar Rivera reaches the opposite conclusion. He argues that these trends in Latin American constitutionalism represent an "authoritarian regression" rather than an enhancement of democracy. Aguilar Rivera begins by discussing and critiquing prevalent Western theories of multiculturalism, particularly the versions set forth by Canadian theorists Charles Taylor, …

Latin American Constitutionalism: Social Rights And The “Engine Room” Of The Constitution, Roberto Gargarella

Notre Dame Journal of International & Comparative Law

Roberto Gargarella surveys the landscape of Latin American Constitutionalism from 1810 to 2010, with particular emphasis on efforts in the late twentieth and early twenty-first centuries to enhance protections of multiculturalism and human rights. Gargarella begins by surveying the "founding period" of Latin American constitutionalism, a period marked by compromise between liberals and conservatives. He proceeds to discuss the increasing incorporation of social rights—primarily economic and labor rights—during the early twentieth century. Gargarella then discusses a final wave of reforms, which introduced increasing human rights protections in the latter half of the twentieth century and the beginning of the twenty-first. …

Nigeria And Mali: The Case For Repatriation And Protection Of Cultural Heritage In Post-Colonial Africa, Elizabeth A. Klesmith

Notre Dame Journal of International & Comparative Law

Writing in early 2013, Elizabeth A. Klesmith explores the challenges of African nations in protecting their cultural heritage in the post-colonization era. She identifies two major challenges to the preservation of African cultural heritage: the multi-billion dollar global trade in illicit heritage and, in certain parts of Africa, the threat of destruction of cultural treasures during bouts of sectarian violence. Klesmith discusses these challenges utilizing case studies concerning the cultural treasures of Nigeria and Mali. In the case of Nigeria, the country is striving to reacquire artifacts looted from the Benin Kingdom in the late nineteenth century and recently purchased …

Defending The Environment: A Mission For The World's Militaries, Mark P. Nevitt

Faculty Articles

Critics often fault the U.S. military for its environmental stewardship, and legal scholarship frequently highlights efforts by the military· to seek national security exemptions from various environmental laws and the military's poor cleanup record Yet the Department of Defense ("DoD '') is largely subject to and complies with the fall array of American environmental laws in the same manner and extent as any agency of the federal government. While the military 's environmental record is far from perfect, a comparative legal survey shows that the U.S. is at the relative forefront of effectively balancing environmental stewardship with national security.

This …

A Prequel To Law And Revolution: A Long Lost Manuscript Of Harold J. Berman Comes To Light, John Witte Jr., Christopher J. Manzer

Faculty Articles

The late Harold Berman was a pioneering scholar of Soviet law, legal history, jurisprudence, and law and religion; he is best known today for his monumental Law and Revolution series on the Western legal tradition. Berman wrote a short book, Law and Language, in the early 1960s, but it was not published until 2013. In this early text, he adumbrated many of the main themes of his later work, including Law and Revolution. He also anticipated a good deal of the interdisciplinary and comparative methodology that we take for granted today, even though it was rare in the …

The Environmental Limitations To Property Rights In Brazil And The United States Of America, Leonardo Munhoz

Dissertations & Theses

This thesis aims to comparatively analyze the legislative evolution that environmental protection has experienced in the Brazilian versus the American legal systems and their relationship with property rights.

Demonstrably, Brazil’s concern with the environment actually came into focus in the 1980s and it therefore received treatment within the Federal Constitution of 1988, as a diffuse right, contributing to better, stronger environmental protection.

Similarly, the protection of the environment in the American Constitution and its statutes as well as their enforcement and interpretation within the legal system are explored.

Of concern is the notion that environmental protection and third-generation rights consequently …

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing?, Mark A. Summers

Richmond Journal of Global Law & Business

No abstract provided.

Assessing Effectiveness Of International Private Regulations In The Csr Arena, Martijn W. Scheltema

Richmond Journal of Global Law & Business

No abstract provided.