Comparative and Foreign Law Commons^™

Of Wife And The Domestic Servant In The Arab World, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The author asserts to avoid common misunderstandings on the relevance of Sharia to modern women in the Arab World that a) Shari’s relevance to the lives of modern women in the Arab World has been largely confined to the area of family law, b) in the modern nation state Sharia has been codified, i.e., certain rules derived from Islamic jurisprudence on the family have been selected and passed as laws, each nation state having its own unique combination of such rules, c) the courts and the judges who adjudicate disputes on family law are either secular courts/judges, or judges trained …

Democracy Promotion: Done Right, A Progressive Cause, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

By the beginning of the Obama Administration, democracy promotion had become a rather tarnished idea, and understandably so. Like Islam or Christianity, much blood has been shed beneath its banner. It may be true that democracies don’t go to war with one another, but they certainly go to war, and their wars kill people just as dead as the wars undertaken by illiberal regimes. Anyone on the political left can tell the story: During the Cold War, the United States fought endless proxy wars and engaged in a great deal of overt and covert mischief, all in the name of …

The Penal Order: Prosecutorial Sentencing As A Model For Criminal Justice Reform?, Stephen C. Thaman

All Faculty Scholarship

This chapter traces the history of the penal order from its earliest roots through its consolidation as a normal alternative form of procedure in Germany. It compares the types of penal order procedures found in modern criminal procedure codes, and it compares penal orders with other “consensual” procedural modes that also involve considerable prosecutorial influence in determination of the level of guilt and punishment: diversion, pleas and stipulations of guilt, and abbreviated trials based on the contents of the preliminary investigation dossier. Finally, it explores whether the penal order, could eventually become a model for the consensual resolution of all …

Criminal Courts And Procedure, Stephen C. Thaman

All Faculty Scholarship

This chapter provides both a historical and modern perspective on criminal procedure around the world.

Schedularity In U.S. Taxation, Its Effect On Tax Distribution, Comparison With Sweden, Henry Ordower

All Faculty Scholarship

The United States derives from a global income tax model under which it taxes it citizens and permanent residents on all their worldwide income without regard to the source of that income. Under a pure global model, the United States would combine income and deductions in a single tax computation. Other countries including Germany and Sweden originate in schedular income tax models under which the tax system classifies income by type, matches it with deductions from the same class, and computes a separate tax on each class. Neither the United States’ global model nor Germany’s or Sweden’s schedular models are …

North American Border Wars: The Role Of Canadian And American Scholarship In U.S. Labor Law Reform Debates, Michael J. Zimmer, Susan Bisom-Rapp

Faculty Scholarship

The economies of Canada and the United States and the organization of their societies are deeply interrelated but significant differences exist. This article briefly traces the interaction between the two countries in the development of labor relations laws with a particular emphasis on the impact of scholarly work on U.S. labor law reform debates in the last two decades. Instructive for that purpose is the work of Professor Paul Weiler, a prominent figure in labor law policy discussions in both countries. A significant architect of labor law in Canada, Professor Weiler came to Harvard Law School in 1978 and brought …

Why Study Islamic Legal Professionals?, Clark B. Lombardi, R. Michael Feener

Washington International Law Journal

In many countries today, including the Southeast Asian nations of Indonesia, Malaysia, and Singapore, governments regulate some aspects of Muslim life according to Islamic law. The administration of Islamic law in these states is carried out by modern courts that are structured differently and staffed by different types of figures than were earlier institutions for the implementation of Islamic law. Prior to the modern era, courts tasked with the job of resolving cases according to Shari‛a were staffed by judges with a particular type of training, and litigants appearing before these judges were generally not represented by a specialized class …

Open Justice: Concepts And Judicial Approaches, Emma Cunliffe

All Faculty Publications

Recent years have seen an increase in the number and scope of non-publication orders and other limits on open justice, an increase in the number of statutes that regulate or threaten open justice, and the articulation of an Australian constitutional principle (of institutional integrity) that has the potential to protect some aspects of open justice. The purposes and values of open justice are, however, rarely examined in a comprehensive or theoretically-informed manner. This article provides a theory of open justice which accounts for its heterogeneous nature. Australian judicial approaches to the substance, limits, and constitutional dimensions of open justice are …

2012 International Advocate For Peace Award Acceptance Speech, John Marks

Cardozo Journal of Conflict Resolution

Worldwide, tens of millions of people are caught up in violent conflict, and hundreds of thousands, if not millions, die every year as a direct result. Violence has a profoundly negative impact on the whole planet, even when it occurs in remote places. Where there is violence, lives and livelihoods are shattered; economic development is blocked; human rights are abused; and the environment is devastated. Consequently, preventing violence is a necessary precursor for humanity to move forward in positive ways. Current problems-whether economic, ethnic, or environmental-are too complex and inter-connected to be settled on a violent, adversarial basis. The earth …

Chinese Use Of Administrative Proceedings To Enforce Intellectual Property Rights: Evaluating And Improving Adr In China, Simeng Han

Cardozo Journal of Conflict Resolution

Since its entry into the World Trade Organization ("WTO") in 2001, China has significantly reformed its legal system in order to enforce its commitment to protecting Intellectual Property ("IP"). Yet, there remains a lingering suspicion of the actual level of Chinese commitment-as indicated by continuous infringement claims from nations such as the United States. With an increasing number of disputes loading the court dockets and putting pressure on judges, and given China's "deep-rooted historical preference for informal and non-adversarial means of dispute resolution," there is enormous potential for further development of ADR in this field. Indeed, the culturally preferable way …

Changes In The European Union's Regime Of Recognizing And Enforcing Judgments And Transnational Litigation In The United States, Samuel P. Baumgartner

Akron Law Faculty Publications

The European Commission has proposed to amend (recast) the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and judgments recognition within the European Union. Although much of the Brussels I Regulation is simply the 1968 Brussels Convention cast into European Union legislation, the proposed amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation within the Union over the past couple of decades. Understanding these changes is essential to understanding what drives the proposed amendments and what is likely to follow.

In this paper – presented at the symposium Our …

A Note On India’S Attempt To Reconcile Diversity And Intellectual Property Issues, Srividhya Ragavan

Faculty Scholarship

For developing countries, the concept of diversity holds great promises not least because of the protection it promises for the fast depleting natural resources leading to catastrophic effect on the environment. The concept of diversity also holds great promises from a trade perspective. In reality, appropriate protection of diversity can be the solution to balance the effects of the trade regime to achieve sustainable development. The term sustainable development, as opposed to rapid pockets of development, embodies great promises for the socio-political framework in poorer nations, apart from the obvious benefit of sustainability. In fact, sustainable development, if it ensues, …

Pereira's Attack On Legalizing Euthanasia Or Assisted Suicide: Smoke And Mirrors, Jocelyn Downie, Kenneth Chambaere, Jan L. Bernheim

Articles, Book Chapters, & Popular Press

In a paper published in Current Oncology, University of Ottawa palliative care physician Jose Pereira states that the, “laws and safeguards [in countries in which euthanasia or assisted suicide have been legalized] are regularly ignored and transgressed in all the jurisdictions, and that transgressions are not prosecuted.” He purports to demonstrate that the safeguards and controls put in place in the permissive jurisdictions are an “illusion.”

In the present paper, we expose problems with the evidence base provided and relied upon by Pereira. It should be noted that we provide only examples of each of the categories of mistakes made …

Cross-Border Extended Collective Licensing: A Solution To Online Dissemination Of Europe’S Cultural Heritage, Johan Axhamn, Lucie Guibault

Articles, Book Chapters, & Popular Press

The ever increasing use of the Internet and of digitisation technologies have opened up new possibilities for distributing and accessing creative content online, including for cultural heritage institutions. However, the digitisation and dissemination of a substantial proportion of the collections held by European cultural institutions may be considerably hindered due to high transaction costs related to clearance of copyright and related rights. This holds equally true for the cultural institutions taking part in the Europeana project. This study examines whether the Nordic “extended collective licensing” (ECL) model could provide a viable solution to the problems of digitisation and dissemination of …

Systems Pluralism And Institutional Pluralism In Constitutional Law: National, Supranational, And Global Governance, Daniel Halberstam

Book Chapters

Constitutions are often seen as creating a closed and hierarchically organized system of law. Constitutional systems are taken as closed to claims of legality from outside the system and as setting forth a hierarchy of norms and institutions that governs within the system. This consolidation of authority, in turn, is predominantly associated with a radical political (re)founding of the state. Politics are framed by law and law is grounded in an act of collective politics on the part of an existing or aspiring community defined by shared histories, norms, processes, and politics.

Parochialism, Cosmopolitanism, And The Foundations Of International Law, Mortimer N.S. Sellers

Books

Summary: "This book determines the boundary between parochial and cosmopolitan justice. To what extent should law recognize or support the political, historical, cultural, and economic differences among nations? Ten lawyers and philosophers from five continents consider whether certain states or persons deserve special treatment or exemptions or heightened duties under international law. Parochialism and cosmopolitanism are the two faces of international law, which recognizes our common humanity by protecting us in our differences"-- Provided by publisher.

Prosecutors And Bargaining In Weak Cases: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt. When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise. First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

In this book chapter, I examine …

Study On The Implementation And Effect In Member States' Laws Of Directive 2001/29/Ec On The Harmonisation Of Certain Aspects Of Copyright And Related Rights In The Information Society: Final Report, Lucie Guibault, Guido Westkamp, Thomas Rieber-Mohn

Reports & Public Policy Documents

This study, commissioned by the European Commission, examines the application of Directive 2001/29/EC in the light of the development of the digital market. Its purpose is to consider how Member States have implemented the Directive into national law and to assist the Commission in evaluating whether the Directive, as currently formulated, remains the appropriate response to the continuing challenges faced by the stakeholders concerned, such as rights holders, commercial users, consumers, educational and scientific users. As set out in specifications of the study set out by the Commission, its aim is 'to assess the role that the Directive has played …

Finding International Law, Part Ii: Our Fragmenting Legal Community, Harlan G. Cohen

Scholarly Works

Is there an “International Community?” This Article suggests that there is not, that the oft-discussed fragmentation of international law reveals that there are in fact multiple overlapping and competing international law communities, each with differing views on law and legitimacy.

This Article reaches this conclusion by taking a fresh look not only at the sources of fragmentation, but at the sources of international law itself. Building on earlier work rethinking international law’s sources and drawing insights from legal philosophy, compliance theory, and international relations, this Article takes a closer look at three areas that have challenged traditional interpretations of international …

China’S ‘Attitude’ Toward Human Rights: Reading Hungdah Chiu In The Era Of The Iraq War, Dongsheng Zang

Articles

China observers in the United States generally share two observations on China today: that China has made impressive progress in economic development in the past three decades, and that China has maintained a poor human rights record since the 1989 Tiananmen Massacre. On the economic front, China overtook Japan and became the second largest economy in 2010. In a joint study with China's Development Research Center of the State Council, the World Bank recently predicted that even if the Chinese economy grows a third as slowly in the future, it will outstrip the United States in terms of overall GDP …