Comparative and Foreign Law Commons^™

The Dilemma Of Public–Private Partnerships As A Vehicle For The Provision Of Regional Transport Infrastructure Development In Africa, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

With regional economic integration (REI) as a major strategy for development, the African continent hosts a plethora of regional economic communities of varying ambition longevity and success. While in the 1970s, political-economic ideas built mainly on the “developmental state” informed the design of most of these agreements, the change in economic thought in the 1980s which ushered in the “neoliberal turn” has since influenced the design of most REI schemes in Africa, including the New Partnership for African Development. However, among other factors, inadequate transport infrastructure linking regions poses a major impediment to regional trade and development in Africa. The …

A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Elizabeth Thornburg, Erik S. Knutsen, Carla Crifo', Camille Cameron

Articles, Book Chapters, & Popular Press

This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree — and in which procedure is recognized as a legitimate academic subject — have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of …

The Ambition And Transformative Potential Of Progressive Property, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

The emerging progressive property school celebrates and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and nonowners have with property and with each other. Despite these ambitions, progressive property scholarship has so far largely confined itself to questions of exclusion and access. This Essay argues that such an emphasis glosses over race-related acquisition and distribution problems that pervade American history and property law. The modest structural changes supported by progressive property scholars fail to account for …

Introduction: China Re-Rising: Innovation And Collaboration For A Successful Twenty-First Century, Lindsay Korotkin

Cardozo Law Review de•novo

All eyes are on China in the twenty-first century, as it emerges as one of the fastest growing economies in the world. At the same time, losses in various industries are attributed to piracy—a substantial amount of which is alleged to occur within China’s borders—and the Chinese government is routinely criticized for its weak enforcement measures against counterfeiting activities and intellectual property infringement on its soil. Cardozo Law Review de•novo’s online symposium, “China Re-Rising: Innovation and Collaboration for a Successful Twenty-First Century” focuses on China’s overall transition from a manufacturing to an innovation economy and how this transition affects …

Collaborative Innovation And Economic Growth: A Comment On China’S Innovation Policies, Chen Wang, Jon Sallet

Cardozo Law Review de•novo

China has also taken steps to encourage the creation of intellectual property by Chinese companies. This Article will first examine the nature of those policies, then consider their impact on the goal of better innovation in China, as well as the impact on multi-national companies that wish to do business in China. The Article will conclude with suggestions about the best ways to build innovation policy to encourage sustainable relationships between China and multi-national companies.

Reimagining The Law Of Self-Employment: A Comparative Perspective, Jayesh Rathod, Michal Skapski

Scholarly Articles in Law Reviews & Journals

U.S. employment law has traditionally disfavored bright-line rules to distinguish between traditional “employees” and independent contractors, instead relying on more flexible criteria, to be applied on a case-by-case basis. This fluidity has enabled employers to structure these relationships – and the corresponding bundle of worker rights and benefits – in ways that serve their own material and normative interests. Indeed, recent employment law literature has noted a dramatic shift towards independent contracting and contingent worker schemes in the U.S., even when the actual workplace dynamics are more akin to an employer-employee relationship. These same trends are now visible on the …

Lessons For International Law From The Arab Spring, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Not all that begins in hope ends in happiness. In Egypt, the exuberance of Tahrir Square has given way to frustration over the resilience of the security state; in Libya, the anti-Qaddafi movement has fractured along tribal and factional lines; in Syria, as of this writing, calls for reform continue to be met with gunfire from government forces. Throughout the Middle East—from Egypt, Libya and Syria to Yemen, Tunisia, Bahrain and elsewhere—the heady excitement of 2010 has given way to a more sober awareness that enduring political change may take years, if not generations. The Arab Spring brought both progress …

Overview And Operation Of U.S. Financial Sanctions, Including The Example Of Iran, Barry E. Carter, Ryan Farha

Georgetown Law Faculty Publications and Other Works

Financial sanctions are increasingly being used in the mix of international economic sanctions being employed by the United Nations, regional entities, and individual countries, including the United States. These financial sanctions have become more focused and effective as the tools and techniques have improved significantly for tracing and identifying the financial transactions of terrorists, weapons proliferators, human rights violators, drug cartels, and others. These sanctions can not only freeze financial assets and prohibit or limit financial transactions, but they also impede trade by making it difficult to pay for the export or import of goods and services.

In spite of …

Book Review Of The Impossible State By Wael Hallaq, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

In his book The Impossible State, Wael Hallaq argues that the modern state is a bad fit for Muslims. This is so because the paradigm of “Islamic Governance”, developed through centuries of Islamic rule, and the modern state of the West are incompatibles if not altogether contradictory. The modern state, a European invention and an expression of the unique unfolding of Europe’s history, being premised on the deep penetration by the nation state of its population, a separation of powers between the executive, legislative and the judiciary that is always faltering, a separation between …

Safe To Be Open: Study On The Protection Of Research Data And Recommendations For Access And Usage, Lucie Guibault, Andreas Wiebe

Books

Openness has become a common concept in a growing number of scientific and academic fields. Expressions such as Open Access (OA) or Open Content (OC) are often employed for publications of papers and research results, or are contained as conditions in tenders issued by a number of funding agencies. More recently the concept of Open Data (OD) is of growing interest in some fields, particularly those that produce large amounts of data – which are not usually protected by standard legal tools such as copyright. However, a thorough understanding of the meaning of Openness – especially its legal implications – …

Book Review: Theory And Practice Of Harmonisation, Mads Andenæs & Camilla B. Andersen (Eds), Toby S. Goldbach

All Faculty Publications

"Theory and Practice of Harmonisation" is an edited symposium publication which tackles the ambitious topic of legal harmonisation. Some common themes can be identified. First, several papers deal with the background to or reasons for harmonisation and consider whether harmonisation goals are being met.Second, several papers examine language-textual issues or problems with defining concepts. A third centralizing theme is the role of legal institutions, in particular courts, in facilitating harmonisation. Finally, a fourth theme is evident in those papers that look at the instruments, mechanisms or legal techniques that are used to implement harmonisation. As a whole, the text seems …

“One Size Can Fit All” – On The Mass Production Of Legal Transplants, Ralf Michaels

Faculty Scholarship

Law reformers like the World Bank sometimes suggest that optimal legal rules and institutions can be recognized and then be recommended for law reform in every country in the world. Comparative lawyers have long been skeptical of such views. They point out that both laws and social problems are context-specific. What works in one context may fail in another. Instead of “one size fits all,” they suggest tailormade solutions.

I challenge this view. Drawing on a comparison with IKEA’s global marketing strategy, I suggest that “one size fits all” can sometimes be not only a successful law reform strategy, but …

Better Ways To Study Regulatory Elephants, Jonathan B. Wiener, Brendon Swedlow, James K. Hammitt, Michael D. Rogers, Peter H. Sand

Faculty Scholarship

No abstract provided.

Private Regulation Of Insider Trading In The Shadow Of Lax Public Enforcement: Evidence From Canadian Firms, Laura Nyantung Beny, Anita Anand

Articles

Like firms in the United States, many Canadian firms voluntarily restrict trading by corporate insiders beyond the requirements of insider trading laws (i.e., super-compliance). Thus, we aim to understand the determinants of firms’ private insider trading policies (ITPs), which are quasi-contractual devices. Based on the assumption that firms that face greater costs from insider trading (or greater benefits from restricting insider trading) ought to be more inclined than other firms to adopt more stringent ITPs, we develop several testable hypotheses. We test our hypotheses using data from a sample of firms included in the Toronto Stock Exchange/Standard and Poor’s (TSX/S&P) …

The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg, Suzanne Baer

Articles

First, I will briefly summarize the state of the art of equality law in Germany today. A distinct dimension of this story from a European Union member state is that we are not just theorizing postnational constitutionalism these days, but that we live it already, since law is not anymore isolated as national but needs to be seen in the context of transnational migration and multinational regimes. Second, I turn to a key feature and key challenge in and to equality law today. It is what I have called the triangle of fundamental rights, referring to the three most prominent …

A Presumptively Better Approach To Arbitrability, John A. E. Pottow, Jacob Brege, Tara J. Hawley

Articles

One of the most complex problems in the arbitration field is the question of who decides disputes over the scope of an arbitrator's purported authority. Courts in Canada and the United States have taken different approaches to this fundamental question of "arbitrability" that necessarily arises when one party disputes the contractual validity of the underlying "container" contract carrying the arbitration clause. If arbitration is a creature of contract, and contract is a product of consensual agreement, then any dispute that impugns the underlying consent of the parties to the container contract implicates the arbitration agreement itself (i.e., no contract, no …

Constitutional Provisions Making Sharia “A” Or “The” Chief Source Of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?, Clark B. Lombardi

Articles

The constitutions of many Arab countries provide that Islamic law ("shari'a") is a "source" of national law. Indeed, some make shari'a norms "a chief source," of state law. Other stronger provisions even declare them to be "the chief source" or "the only source" of legislation. There has been surprisingly little historical scholarship about these clauses, either in Arabic or in Western languages. There has also been almost no systematic comparative scholarship looking at the way that these clauses have been interpreted in different countries. In both Western scholarship and in popular Arab discourse one finds considerable confusion about where these …

Two Conflicts In Context: Lessons From The Schiavo And Bland Cases And The Role Of Best Interests Analysis In The United Kingdom, Barbara A. Noah

Faculty Scholarship

This Essay considers the different approaches to end of life decision making for incapacitated patients in the United States and in the United Kingdom. In the United States, individual patient autonomy is the primary guidepost for making end of life decisions for incapacitated patients. In the United Kingdom, patient preference is openly and deliberately supplemented with a careful consideration of the patient’s best interest. To contrast the two approaches, the Essay focuses on two cases involving patients in permanent vegetative states (PVS) for whom little was known about their respective individual preferences, and it analyzes the differences in conceptualization and …

Visiting Room: A Response To Prison Visitation Policies: A Fifty-State Survey, Giovanna Shay

Faculty Scholarship

This Essay responds to Boudin, Stutz & Littman, Prison Visitation Policies: A Fifty State Survey, by placing American visitation policies in a global context. American prison visitation polices are unique among advanced democracies. Other nations, particularly in Western Europe, have far more liberal policies. Prisons in the United Kingdom, Canada, and Finland feature mother/baby units and family visitation centers. In Denmark and Norway, prisoners are granted passes to visit family. These policies encourage visitation. Increased visitation is linked to lower recidivism, so adopting such policies would potentially lower prison populations in the United States. The Essay acknowledges that following …

Defamation And False Rape Claims: Policies, Attitudes, And Suggested Reform In The United States And The United Kingdom, Claire Steinman

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and societal implications of defamation cases arising from false rape claims in the United States and the United Kingdom. It argues that while U.S. defamation law provides stricter standards for liability, the U.K.'s approach to punishment is more effective in deterring false claims. The optimal solution, the note suggests, is to combine the U.S. legal framework for determining liability with the U.K.'s harsher penalties to protect both the falsely accused and genuine victims.