Comparative and Foreign Law Commons^™

The Functionalism Of Legal Origins, Ralf Michaels

Faculty Scholarship

This article, written on request for the centennial issue of Ius Commune Europaeum, connects the economic literature on legal origins (La Porta et al) and the World Bank's Doing Business reports with discussions in comparative law about the functional method. It finds that a number of parallels and similarities exist, and that much of the criticism that has been voiced against functionalism should apply, mutates mutants, also to these more recent projects. The attraction that these projects have derive not, it is argued, from their methodological sophistication, but instead from "the strange lure of economics" and from the ostentatious objectivity …

Addressing The Overrepresentation Of The Maori In New Zealand's Criminal Justice System At The Sentencing Stage: How Australia Can Provide A Model For Change, Joanna Hess

Washington International Law Journal

New Zealand’s 2002 Sentencing Act provides several ways a sentencing court may take an offender’s cultural or ethnic background into account. Given the disproportionate rate of recidivism among New Zealand’s indigenous Maori offenders and international and domestic concerns regarding this problem, the Act’s provisions offer one method for addressing and mitigating this issue. However, these sentencing provisions remain largely unknown or underused. This comment argues that in order to tackle these concerns, left unaddressed by the current Sentencing Act, New Zealand should restructure its sentencing provisions to follow the legislative model that is developing in Australian states, particularly the model …

China's Compliance With International Law: What Has Been Learned And The Gaps Remaining, Roda Mushkat

Washington International Law Journal

Chinese willingness and ability to play by the rules in the global arena is a critical issue that has long loomed large on the academic and policy agendas. A substantial body of knowledge has been built in the past two decades, shedding considerable light on key dimensions of the question. However, there is an apparent need to fine-tune the approach pursued thus far by seeking greater methodological robustness and better theoretical elucidation. Data collection procedures must be anchored more firmly in principles of scientific inquiry, providing a solid empirical foundation for reliable and valid generalizations, and single-cause explanations need to …

Regular Takings Or Regulatory Takings?: Land Expropriation In Rural China, Valerie Jaffee Washburn

Washington International Law Journal

This article takes as its starting point the recent spate of unrest in rural China over government takings of rural, agricultural land. Though the popular and scholarly press has paid a great deal of attention to this issue, few analyses have explored in depth the institutional and legal framework surrounding it. This piece first attempts such an exploration and concludes that the underlying issues have as much to do with China's national land use regulatory system as they do with the behavior of local governments that seize privately-farmed land for other uses. In fact, it is more productive to see …

The North American Free Trade Agreemetn: Looking At The Binational Panel System Through The Lens Of Free Enterpresie Fund, John J. Garman, Matthew K. Bell

Richmond Journal of Global Law & Business

This paper examines the constitutionality of the binational panels of the North American Free Trade Agreement (“NAFTA”) under the United States Constitution. Part I provides an overview of the binational panel process. Part II outlines the process for challenging the constitutionality of binational panels and the obstacles that must be overcome. Part III discusses possible violations of the Due Process Clause. Part IV analyzes the constitutionality of binational panels under Article II of the United States Constitution. Part V examines the constitutional implications of Article III with respect to the absence of judicial review. Part VI is a case-by-case analysis …

The Future Of Hedge Fund Regulation: A Comparative Approach: United States, United Kingdom, France, Italy, And Germany, Anne Riviere

Richmond Journal of Global Law & Business

No abstract provided.

"Male" Order Brides And International Marriage Brokers: The Costly Industry That Facilitates Sex Trafficking, Prostitution, And Involuntary Servitude, Carin M. Bowes

Cardozo Journal of Equal Rights & Social Justice

The article argues that the international marriage broker (IMB) industry, commonly associated with "mail-order brides," facilitates severe human rights violations, including sex trafficking, prostitution, and involuntary servitude. Despite legal efforts like the International Marriage Broker Regulation Act (IMBRA), the industry remains exploitative, with current regulations failing to adequately protect women from abuse and exploitation.

End-Of-Life Decision-Making In Canada: The Report By The Royal Society Of Canada Expert Panel On End-Of-Life Decision-Making, Udo Schuklenk, Johannes J. M. Van Delden, Jocelyn Downie, Sheila Mclean, Ross Upshur, Daniel Marc Weinstock

Reports & Public Policy Documents

This report on end-of-life decision-making in Canada was produced by an international expert panel and commissioned by the Royal Society of Canada. It consists of five chapters: Chapter 1 reviews what is known about end-of-life care and opinions about assisted dying in Canada, Chapter 2 reviews the legal status quo in Canada with regard to various forms of assisted death, Chapter 3 reviews ethical issues pertaining to assisted death. The analysis is grounded in core values central to Canada’s constitutional order, Chapter 4 reviews the experiences had in a number of jurisdictions that have decriminalized or recently reviewed assisted dying …

The Rule 23(B)(3) Superiority Requirement And Transnational Class Actions: Excluding Foreign Class Members In Favor Of European Remedies, Michael P. Murtagh

UC Law SF International Law Review

This Article analyzes the way federal courts conduct their superiority inquiries on motions for class certification in transnational class actions. Opt-out class actions under Rule 23(b)(3) conflict with an important premise of legal systems around the world, namely, that one cannot be bound to a judgment unless one affirmatively participated in the lawsuit. Federal courts sometimes either decline to certify the class or exclude foreign class members from the class because of the risk that the courts of foreign countries will not enforce the class action judgment. This Article argues that the current approach inefficiently exposes the parties to costly …

Health, Human Rights, And Violence Against Women And Girls: Broadly Redefining Affirmative State Duties After Opuz V. Turkey, Cheryl Hanna

UC Law SF International Law Review

This Paper was initially presented at the Hastings International & Comparative Law Review symposium Heath as a Human Right: The Global Option. The symposium was held in memory of Professor Virginia Leary, a leader in international law. Professor Hanna takes this theme and applies it to global problem of violence against women and girls and makes two assertions. First, while there has been tremendous progress in our understanding of how male violence against women and girls undermines gender equality and impacts their right to autonomy and full citizenship, the most fundamental and basic consequence of such violence - physical and …

Hiv/Aids And Human Rights In Botswana And Swaziland: A Matter Of Dignity And Health, Vincent Iacopino, Sheri D. Weiser, Madhavi Dandu, David Tuller

UC Law SF International Law Review

A health and human rights framework provides a comprehensive perspective for understanding complex interactions between HIV/AIDS, human rights, and the health of individuals and communities. By helping to identify a broad range of social factors that affect health, such a framework also facilitates the development of interventions and policies that maximize both health and human rights benefits. In this Article, we discuss the various linkages between health and human rights and review the literature on HIV/AIDS and human rights, with a focus on under-resourced settings. In particular, we examine how the framework is relevant to the specific epidemics in Botswana …

Immigration, Crime, And Public Perception: Victimization Legislation In The United States And Canada - Can The U Visa Serve As A Model?, Bettina Rodriguez Schlegel

UC Law SF International Law Review

This Note compares the forces behind the creation and the implementation of crime victim visa legislation in the United States and Canada. Both are recognized globally as important immigrant-receiving nations with long histories of reliance on immigrant populations for economic growth and expansion. Both states have crafted immigration policies in line with their economic needs and societal perceptions of immigrants in relation to the dominant culture mores. This Note analyzes the two nation's historical trends in relation to immigration as a stepping stone towards understanding the current realities of immigrant life in North America and delves in to the impacts …

International Alchemy Within The Post-Copenhagen World: Transforming Critical Infrastructure Across Two Hundred Divergent Economics, Steven Ferrey

UC Law SF International Law Review

International solutions, reaching across different types of economies and systems of governance in two hundred world nations, have achieved a new urgency: Leading world climate scientists declare that in the next five years, the world is at a "tipping point" beyond which there is scant redemption from climate catastrophe. It is clear that solutions must quickly focus on a new energy infrastructure, somehow implemented across fundamentally different systems of national governance and economy, to abate rapidly exploding CO₂ emissions from unrestrained, cheap fossil-fuel energy use.

While the press coverage of the recent Copenhagen and Cancun international climate conferences concentrated …

Universal Jurisdiction To Prosecute Human Trafficking: Analyzing The Practical Impact Of A Jurisdictional Change In Federal Law, John Reynolds

UC Law SF International Law Review

Human trafficking is fast-growing international dilemma. This note evaluates the potential of universal jurisdiction to prosecute human trafficking to mitigate the crime's impact. Analogies are drawn to slavery and piracy, the paradigm crimes subject to universal jurisdiction. This note will also explore alternative approaches to combating human trafficking - political and economic approaches that attempt to undercut the root causes of human trafficking.

Immunity, Italian Style: Silvio Berlusconi Versus The Italian Legal System, Brendan Quigley

UC Law SF International Law Review

Italian Prime Minister Silvio Berlusconi is Italy's longest serving Prime Minister since the founding of the First Italian Republic in 1946. He is also one of Italy's richest men, owed largely to a vast media empire encompassing private television, film production, publishing, insurance, and banking. In conjunction with this private wealth and influence, the Prime Minister's political clout has afforded him virtually unparalleled power within Italy. Despite the scope of his influence, however, Berlusconi has been a constant subject of legal controversy since his rise to power in the early to mid 1990s. Over the years, he has been accused …

The Impunity Gap Of The International Criminal Tribunal For Rwanda: Causes And Consequences, Leslie Haskell, Lars Waldorf

UC Law SF International Law Review

The International Criminal Tribunal for Rwanda (ICTR) has achieved considerable success in bringing to justice those most responsible for the 1994 genocide in Rwanda. However, the ICTR's Prosecutor has failed to indict a single member of the Rwandan Patriotic Front (RPF), a rebel group that now governs Rwanda, for war crimes and crimes against humanity committed in 1994 as a result of state noncooperation. Instead, the Prosecutor allowed Rwanda to conduct a sham trial into a notorious massacre involving thirteen clergy that his office had investigated. This Article takes a close look at this case and is based on the …

Electronic Medical Records And The Challenge To Privacy: How The United States And Canada Are Responding, Elana Rivkin-Haas

UC Law SF International Law Review

The rapid and continual advances in electronic record keeping create new and challenging privacy concerns in a variety of contexts. This Note examines the particular privacy issues countries face as their health care systems move towards more centralized, electronic medical record keeping. Electronic medical records provide for the increased collection, availability, aggregation, and dissemination of medical data which can facilitate more effective care, but can also leave people vulnerable to having private information misused. This Note focuses on the current privacy law framework in the United States and Canada. It will then explore whether the legal standards in these countries …

Fragrant Or Foul? - Regulation Of The Global Perfume Industry And The Implications For American Sovereignty, Caroline M. Reebs

UC Law SF International Law Review

The regulation of fragranced personal care products is increasingly scrutinized in the United States. As the FDA's cosmetic product requirements are minimal, particularly when compared to those followed by food producers and drug manufacturers, consumer groups emphasize the negative health implications. Industry, on the other hand, maintains that fragrances are safe for use and are effectively monitored by international trade associations. Because the government plays a modest role in cosmetic regulation, an arbiter is needed.

This Note examines the above concerns in a comparative light. The European Union's Cosmetic Directive imposes more requirements on cosmetic manufacturers and maintains a lengthier …

Workplace Bullying As An Occupational Safety And Health Matter: A Comparative Analysis, Susan Harthill

UC Law SF International Law Review

Workers who are bullied at work suffer physically and mentally, and can even be driven to suicide. There ought to be a law against workplace bullying, and in some countries, there is. Despite a growing body of interdisciplinary work highlighting the prevalence and costs of workplace bullying in the United States, there are currently no U.S. state or federal laws expressly addressing the issue, despite the ground breaking work and legislative efforts of workplace bullying pioneers, David Yamada and Drs. Ruth and Gary Namie. The dismal fact for American workers is that the U.S. lags behind many other countries when …

Constitutional Rigidity In Kosovo: Significance, Outcomes, And Rationale, Fisnik Korenica, Dren Doli

Pace International Law Review Online Companion

This article discusses the issue of constitutional rigidity from the perspective of the Constitution of Kosovo.  At the outset, the article analyzes the amendment procedure within the Constitution and its nature in terms of the actors and procedures involved.  Next, the article questions the nature of constitutional rigidity in Kosovo and seeks to address the position of veto players.  Arguing that the Constitution of Kosovo is rather rigid, the article then questions the significance of constitutional rigidity in light of the model of separation of powers, human rights, and the Constitutional Court’s constitutional “updating” role.  The article concludes that constitutional …