Comparative and Foreign Law Commons^™

Comparative Law: Problems And Prospects, Elisabeth Zoller, George A. Bermann, Patrick Glenn, Kim Lane Scheppele, Amr Shalakany, David V, Snyder

Articles by Maurer Faculty

This is an edited transcript of the closing plenary session of the XVIIIth International Congress of Comparative Law. The session took place on Saturday, July 31, 2010, in Washington, D.C., at the conclusion of the week-long congress, which is held quadrennially by the International Academy of Comparative Law (Acadimie Internationale de Droit Compare). The remarks were given in a mix of French and English, but for ease of reading the transcript is almost entirely in English.

Why Cherry Picking Never Leads To Harmonisation: The Case Of The Limitations On Copyright Under Directive 2001/29/Ec, Lucie Guibault

Articles, Book Chapters, & Popular Press

The article examines whether the norms laid down in the Directive in relation to the exceptions and limitations on copyright and related rights can be conducive to a sensible degree of harmonisation across the European Union. Before discussing the degree of harmonisation achieved so far by the Directive, the first part gives a short overview of the main characteristics of the list of exceptions and limitations contained in Article 5 of the Directive. A comprehensive review of the implementation of each limitation by the Member States is beyond the scope of this article. The following section takes a closer look …

The Impact Of China's Antitrust Law And Other Competition Policies On U.S. Companies, Susan Beth Farmer

Faculty Scholarship

This article is based on the author's testimony for part of the hearings on “The Impact of China’s Antitrust Law and Other Competition Policies On U.S. Companies,” held by the House Committee on the Judiciary, Subcommittee on Courts and Competition Policy on July 13, 2010. It describes developments in the enforcement and application of the Chinese Anti-Monopoly Law, interpretation and enforcement during the two years since the AML came into effect, with particular attention to merger review. It comments on the organization and staffing of the enforcement agencies and the publication of numerous procedures, guidelines and regulations, which suggests that …

Promoting Commercial Law Reform In Eastern Europe, Samuel Bufford

Faculty Scholarship

This article is my account of what I did in a decade of advising governments and teaching judicial seminars on commercial law matters in Central and Eastern Europe, beginning in 1991. This article contains my individual reflections on more than a dozen visits to developing countries in Central and Eastern Europe to advise governments and to educate their judges, and several visits of judges from some of those countries to the United States. In many ways, my experiences are typical of United States judges who have done the same kind of work in developing countries. In some ways, my experiences …

Freeze-Outs: Transcontinental Analysis And Reform Proposals, Marco Ventoruzzo

Faculty Scholarship

One of the most crucial, but systematically neglected, comparative differences between corporate law systems in Europe and in the United States concerns the regulations governing freeze-out transactions in listed corporations. Freeze-outs can be defined as transactions in which the controlling shareholder exercises a legal right to buy out the shares of the minority, and consequently delists the corporation and brings it private. Beyond this essential definition, the systems diverge profoundly.

This gap exists despite the fact that minority freeze-outs are one of the most debated issues in corporate law, in the public media, in a vast body of scholarly work …

Freeze-Outs: Transcontinental Analysis And Reform Proposals, Marco Ventoruzzo

Faculty Scholarship

One of the most crucial, but systematically neglected, comparative differences between corporate law systems in Europe and in the United States concerns the regulations governing freeze-out transactions in listed corporations. Freeze-outs can be defined as transactions in which the controlling shareholder exercises a legal right to buy out the shares of the minority, and consequently delists the corporation and brings it private. Beyond this essential definition, the systems diverge profoundly. This gap exists despite the fact that minority freeze-outs are one of the most debated issues in corporate law, in the public media, in a vast body of scholarly work …

Sales Or Plans: A Comparative Account Of The "New" Corporate Reorganization, Stephanie Ben-Ishai, Stephen J. Lubben

Articles & Book Chapters

In this article, Professors Stephanie Ben-Ishai and Stephen Lubben explore the recent surge in popularity of “quick-sales,” essentially the pre-reorganization plan sale of an insolvent debtor’s assets. In their examination of quick sales, the authors use the recent examples of Lehman Brothers and Chrysler to illustrate the popularity and relevance of the pre-plan sales. The authors then move on to a more detailed discussion of the quick sales process in both Canada and the United States, isolating the differences and similarities between both countries, and weighing the costs and benefits of each approach. Ultimately, the authors argue that questions of …

Why Should International Law Be Concerned About State Failure?, Chiara Giorgetti

Law Faculty Publications

In the last fifty years, the international community has undergone a transformation, as social, economic, and political dynamics have been altered. In fact, the international power structure has shifted towards a more complex structure, economies have been largely liberalized, new powerful international actors have emerged, and security threats have altered significantly. These transformations impacted all nation States. Indeed, a new standard of governance emerged that resulted in increased responsibility to each State's nationals. Similarly, States have become increasingly interindependent and have additional (both in numbers and substance) obligations towards each other and the international community in general. Certain States, however, …

Changing Media, Changing Courts, Benjamin L. Liebman

Faculty Scholarship

This chapter examines court-media relations in China and argues that such relations are increasingly a two-way street. Media coverage is forcing the courts to act more carefully — and perhaps fairly. But pressure from the courts is also resulting in greater attention to factual reporting and professional standards in the media. This interactive relationship reflects the position of the courts and media as institutions competing for authority within the Chinese political system. It also suggests that there is significant room for ground-up development of both media and the courts.

The first section discusses the growth of media coverage of legal …

Individualized Service Provision In The New Welfare State: Lessons From Special Education In Finland, Charles F. Sabel, Annalee Saxenian, Reijo Miettinen, Peer Hull Kristensen, Jarkko Hautamäki

Faculty Scholarship

The essay is four parts. Part 2 sets out the theoretical frame of the argument. It explains briefly why social solidarity increasingly depends on the provision of capacitating or enabling circumstances; why those services must increasingly be adapted to individual needs to be effective; and what is organizationally problematic (from the point of view of current theories of organization) about the success of countries such as Finland, Denmark and the US in delivering these services. It sketches two paths — a Nordic way, building on traditional professions, and a roundabout, US way, re-building broken bureaucracies originally intended as substitutes for …

The Rule Of Law Unplugged, Daniel B. Rodriguez, Mathew D. Mccubbins, Barry R. Weingast

Faculty Scholarship

The "Rule of Law" is a venerable concept, but, on closer inspection, it is a complex admixture of positive assumptions, inchoate political and legal theory, and occasionally wishful thinking. Although enormous investments have been made in rule of law reformism throughout the world, advocates of transplanting American-style legal and political institutions to developed and developing countries are often unclear about what they are transplanting and why they are doing so. The concept of rule of law has become unplugged from theories of law. Scholars clearly have more work to do in understanding the rule of law and designing institutions to …

International Movement To Deter Corruption: Should China Join?, Paul D. Carrington

Faculty Scholarship

Global concerns over the corruption of weak governments by firms engaged in transnational business are the source of an international movement that emerged in 1997. Special concern is presently directed at the weakness of enforcement of laws enacted in recent times to deter corrupt business practices in international trade that were enacted in response to that movement. One cause of weakness in law enforcement is the failure of China to share actively in those concerns and the efforts to address them. This essay will briefly record steps taken in other nations to address the concerns and the limited effectiveness of …

Explanation Interpretation In Functionalist Comparative Law — A Response To Julie De Coninck, Ralf Michaels

Faculty Scholarship

Response to Julie de Coninck, The Functional Method of Comparative Law: Quo Vadis?, 74 Rabels Zeitschrift für ausländisches und internationales Privatrecht 318–350 (2010) in which De Coninck criticizes existing functionalist comparative law for what she perceives as lack of interest in empirical foundations.

Korea's Patent Policy And Its Impact On Economic Development: A Model For Emerging Countries?, Jay Erstling

Faculty Scholarship

The purpose of this paper will be to examine Korean patent policy as exemplified by its patent legislation and the activities of Korean Intellectual Property Office (KIPO). Part II will take a brief look at the rationale underpinning Korea's confidence in the power of the patent system to stimulate economic growth. Part III of the paper will look at the Korean Patent Act as an example of strong, comprehensive patent legislation that fully complies with international standards and responds well to the perceived needs of patent applicants. In order to provide a basis of comparison, reference will be made wherever …

Japan's New Lay Judge System: Deliberative Democracy In Action?, Zachary Corey, Valerie P. Hans

Cornell Law Faculty Publications

No abstract provided.

Tax Neutrality, Stephen Utz

Faculty Articles and Papers

Is tax neutrality an illusion? My honored friend Pierre Beltrame and his distinguished co-author Lucien Mehl once wrote: “[L]orsque le taux de l’impôt s’éléve, qu’il devient progressif, et que d’importantes masses monétaires sont redistribuées, le fait financier ne peut être neutre, stricto sensu, à l’égard, ni de l’ensemble de l’économie, ne de la répartition de revenu national” (Pierre Beltrame & Lucien Mehl, Techniques, Politiques et Institutions Fiscales Comparées, Presses Universitaires de France, Paris, 2d ed., 1997, p. 314). As they also observed, however, relative judgments of neutrality, judgments that purport to deal the neutrality of isolated elements of a tax …

Reforming Fairness: The Need For Legal Pragmatism In The Wto Dispute Settlement Process, Webb Mcarthur

Richmond Journal of Global Law & Business

The World Trade Organization (“WTO”) dispute settlement system is intended to be the central pillar of the international trade system by which trade disputes involving WTO member states are adjudicated, whether regarding trade in goods, services, or in intellectual property rights. However, an innocuous statement such as this, when closely considered, indicates potential problems for the system. The WTO is an international treaty-based organization, established in 1994 by 123 countries in Marrakesh, Morocco. In addition to settling disputes in international trade, the WTO is also a negotiating forum and a set of rules. The organization is more than a “table” …

A Current Review Of Chinese Land-Use Law And Policy: A "Breakthrough" In Rural Reform?, Robin Dean, Tobias Damm-Luhr

Washington International Law Journal

Three decades ago, China moved from a communal system of farming to a system that granted more extensive land-use rights to individual households, starting rural China on a path to greater prosperity. Today, however, the law and policy promulgated by the Chinese government prevents farmers from fully realizing this prosperity. The Land Administration Law gives farmers thirty-year contractual rights to the land they farm and the Law on Rural Land Contracting strengthens this right by more specifically enumerating requirements for land contracting and the transfer of contractual rights. Nevertheless, the rural-urban gap is the worst it has been in decades …

The Executive And The Courts, Richard Clayton

Penn State International Law Review (1982 - 2011)

No abstract provided.

Methodological Challenges In Comparative Constitutional Law, Vicki Jackson

Penn State International Law Review (1982 - 2011)

No abstract provided.