Monday, September 26, 2016
Annual Comparative Law Work-in-Progress Workshop
April 28-29, 2017
UCLA School of Law
Announcement and Call for Papers
Organized by Máximo Langer (University of California at Los Angeles), Jacqueline Ross (University of Illinois College of Law), and Kim Lane Scheppele (Princeton University)
Co-sponsored by the University of California at Los Angeles, the University of Illinois College of Law, Princeton University, and the American Society of Comparative Law
We invite all interested comparative law scholars to consider submitting a paper to the next annual Comparative Law Work-in-Progress Workshop, which will be held on Friday and Saturday, April 28 and 29, 2017, at UCLA School of Law. We will accept up to seven papers for workshop discussion, and we plan to select a mix of both junior and senior scholars.
Interested authors should submit papers to Máximo Langer at UCLA School of Law email@example.com by February 1, 2017. We will inform authors of our decision by March 1, 2017. Participants whose papers have been accepted should plan to arrive in Los Angeles, California by Thursday night on April 27, 2017, and to leave on Saturday April 29, 2017 in the late afternoon/evening.
The annual workshop continues to be an important forum in which comparative law work in progress can be explored among colleagues in a serious and thorough manner that will be truly helpful to the respective authors. "Work in progress" means scholarship that has reached a stage at which it is substantial enough to merit serious discussion and critique but that has not yet appeared in print (and can still be revised after the workshop, if it has already been accepted for publication.) It includes law review articles, book chapters or outlines, substantial book reviews, and other appropriate genres.
We ask for only one contribution per author and also ask authors to limit their papers to 50 pages in length, or, if the paper (or book chapter) is longer, to indicate which 50 pages they would like to have read and discussed.
Our objective is not only to provide an opportunity for the discussion of scholarly work but also to create the opportunity for comparative lawyers to get together for two days devoted to nothing but talking shop, both in the sessions and outside. We hope that this will create synergy that fosters more dialogue, cooperation, and an increased sense of coherence for the discipline.
The participants in the workshop will consist of the respective authors, commentators, and faculty members of the host institutions. The overall group will be kept small enough to sit around a large table and to allow serious discussion. The papers will not be presented at the workshop. They will be distributed well in advance and every participant must have read them before attending the meeting. Each paper will be introduced and discussed first by two commentators before opening the discussion to the other workshop participants. Each of the authors selected for the workshop is expected to have read and to be prepared to discuss each of the papers selected. The author of each paper will be given an opportunity to respond and ask questions of his or her own. There are no plans to publish the papers. Instead, it is up to the authors to seek publication if, and wherever, they wish. The goal of the workshop is to improve the work before publication.
The Workshop will be funded by the host school and by the American Society of Comparative Law. Authors of papers and commentators will be reimbursed for their travel expenses and accommodation up to $600, by either by the American Society of Comparative Law or UCLA School of Law, in accordance with the ASCL reimbursement policy (as posted on its webpage.) We ask that authors inquire into funding opportunities at their home institutions before applying for reimbursement by the ASCL or by UCLA School of Law.
Sunday, September 11, 2016
RECENT TOP PAPERS for all papers first announced in the last 60 days
13 Jul 2016 through 11 Sep 2016
|1||244|| The Rise of the Independent Director: A Historical and Comparative Perspective
Max Planck Institute for Comparative and International Private Law
Date posted to database: 30 Jul 2016
Last Revised: 5 Aug 2016
|2||101|| When Trumps Clash: Dworkin and the Doctrine of Proportionality
Date posted to database: 1 Sep 2016
Last Revised: 2 Sep 2016
|3||87|| Friending the Privacy Regulators
University of Minnesota Law School
Date posted to database: 11 Aug 2016
Last Revised: 24 Aug 2016
|4||72|| Beyond Proportionality: Thinking Comparatively About Constitutional Review and Punitiveness
London School of Economics - Law Department
Date posted to database: 5 Aug 2016
Last Revised: 18 Aug 2016
|5||72|| The 'Fusion' of Law and Equity?: A Canadian Perspective on the Substantive, Jurisdictional, or Non-Fusion of Legal and Equitable Matters
Leonard I. Rotman
Schulich School of Law, Dalhousie University
Date posted to database: 7 Aug 2016
Last Revised: 8 Aug 2016
|6||63|| Protection of Family against Testamentary Dispositions in English Law — Recent Case of Ilott v. Mitson: On the Road to a Regime of Forced Heirship?
Andrzej Frycz Modrzewski Kracow University
Date posted to database: 4 Aug 2016
Last Revised: 4 Aug 2016
|7||61|| Esports Corruption: Gambling, Doping, and Global Governance
John T. Holden, Ryan M. Rodenberg and Anastasios Kaburakis
Florida State University, Florida State University and Saint Louis University - John Cook School of Business
Date posted to database: 1 Sep 2016
Last Revised: 1 Sep 2016
|8||57|| Three Essays on Proportionality Doctrine
Harvard Law School
Date posted to database: 6 Aug 2016
Last Revised: 6 Aug 2016
|9||54|| Constitutional Sunrise
Leiden Law School, Department of Public Law
Date posted to database: 29 Jul 2016
Last Revised: 29 Jul 2016
|10||49|| The Enforceability of Escalation Clauses Providing for Negotiations in Good Faith Under English Law
Latham & Watkins
Date posted to database: 18 Jul 2016
Last Revised: 18 Jul 2016
Monday, September 5, 2016
This post was written by Matt Boles, a third-year law student at the Paul M. Hebert Law Center at Louisiana State University in Baton Rouge. Mr. Boles is a research assistant to Dr. Moreteau and is Managing Editor of the Journal of Civil Law Studies. Mr. Boles graduated from the University of Florida with a BS in Public Relations (summa cum laude) and a BA in Spanish (cum laude). firstname.lastname@example.org
* * *
Hearing the word “Louisiana” conjures up the flags with fleur-de-lis, a state named after French King Louis XIV, and a state that treats mardi gras as a holiday like no other. In terms of its legal characteristics, Louisiana is known as the sole state to use a civil code, with some people labeling it as the Napoleonic Code, given our French roots before the Louisiana Purchase in the early 19th century.
Despite the prevalence of the French language and culture, the 1870 Louisiana Code, the one that is still in effect today, was only published in English. This was a sharp contrast from its 1808 Digest and 1825 Code that were published in both languages with both being authoritative sources of the law. The Code was never subsequently translated from beginning to end, or at least not until now nearly 150 years after the Code’s promulgation.
The Center of Civil Law Studies at the Paul M. Hébert Law Center at Louisiana State University published the Louisiana Civil Code in its entirety in French in July of 2016, marking the first time the 1870 Code has been completely translated. Dr. Olivier P. Moréteau, the Director of the Center of Civil Law Studies and Russell B. Long Eminent Scholars Academic Chair, was the Project Director. Professors, legal scholars, and legal interns assisted on the project in a collaborative effort with organizations like the Center for French and Francophone Studies at Louisiana State University, the Louisiana State Law Institute, and the Université de Nantes.
Located online, users have the option of either viewing the Code just in French or reading the articles in English and French side-by-side. Although the translation lacks “official legal standing” and that “the English version controls,” the value of the work cannot be understated for legal comparativists.
To see the Louisiana Civil Code in French, click on the links below:
Code just in French: http://lcco.law.lsu.edu/?uid=1&ver=fr#top
Code in French and English side-by-side: http://lcco.law.lsu.edu/?uid=1&ver=enfr#top
Saturday, August 27, 2016
Passing Wealth on Death
Will-Substitutes in Comparative Perspective
Edited by Alexandra Braun and Anne Röthel
Wealth can be transferred on death in a number of different ways, most commonly by will. Yet a person can also use a variety of other means to benefit someone on death. Examples include donationes mortis causa, joint tenancies, trusts, life-insurance contracts and nominations in pension and retirement plans. In the US, these modes of transfer are grouped under the category of ‘will-substitutes’ and are generally treated as testamentary dispositions.
Much has been written about the effect of the use of will-substitutes in the US, but little is generally known about developments in other jurisdictions. For the first time, this collection of contributions looks at will-substitutes from a comparative perspective. It examines mechanisms that pass wealth on death across a number of common law, civil law and mixed legal jurisdictions, and explores the rationale behind their use. It analyses them from different viewpoints, including those of owners of businesses, investors, as well as creditors, family members and dependants. The aims of the volume are to show the complexity and dynamics of wealth transfers on death across jurisdictions, to identify patterns between jurisdictions, and to report the attitudes towards the different modes of transfer in light of their utility and the potential frictions they give rise to with policies and principles underpinning current laws.
Alexandra Braun is Professor of Comparative Private Law at the University of Oxford and Fellow and Tutor in Law at Lady Margaret Hall, Oxford.
Anne Röthel is Professor of Law, Chair of Civil Law, European and International Private Law at the Bucerius Law School in Hamburg.
July 2016 | 9781849466981 | 408pp | Hardback | RSP: £75
Discount Price: £60
Click here to order online – use discount code CV7 at the checkout to get 20% off
Saturday, August 20, 2016
Samuel Moyn Harvard University Date posted to database: 8 Jul 2016
Alex Loomis Harvard University, Law School, Students Date posted to database: 24 Jul 2016
Jens David Ohlin Cornell University - School of Law Date posted to database: 22 Jul 2016
Alexander K. A. Greenawalt Pace University School of Law Date posted to database: 9 Aug 2016
Mary Bosworth University of Oxford - Faculty of Law Date posted to database: 28 Jul 2016
Shawn Marie Boyne Indiana University Robert H. McKinney School of Law Date posted to database: 7 Jul 2016
Adam Ross Pearlman Government of the United States of America - Department of Defense Date posted to database: 24 Jun 2016
Available at: SSRN
Sunday, August 14, 2016
Suja Thomas, University of Illinois College of Law, has recently published a compelling book that explores not only the decline of the jury system in the United States but also contains a chapter that takes a look at the role of juries worldwide. From the description:
Tuesday, August 2, 2016
Nicola Lupo and Cristina Fasone ( LUISS Guido Carli University, Rome) have recently published a timely edited collection entitled PARLIAMENTARY COOPERATION IN THE COMPOSITE EUROPEAN CONSTITUTION. From the marketing flyer:
This collection analyses the place and the functioning of interparliamentary cooperation in the EU composite constitutional order, taking into account both the European and the national dimensions. The chapters join the recent scholarship on the role of parliaments in the EU after the Treaty of Lisbon. The aim of this volume is to highlight the constitutional significance of interparliamentary cooperation as a permanent feature of EU democracy and as a new parliamentary function as well as to investigate the practical side of this relatively new phenomenon. To this end the contributors are academics and parliamentary officials from all over Europe.
The volume discusses the developments in interparliamentary cooperation and its implications for the organization and procedures of national parliaments and the European Parliament, for the fragmented executive of the EU, and for the democratic legitimacy of the overall EU composite Constitution. These issues are examined by looking at the European legislative process, the European Semester and the Treaty revisions. Moreover, the contributions take into account the effects of interparliamentary cooperation on the internal structure of parliaments and analyze the different models of interparliamentary cooperation, ie from COSAC to the new Interparliamentary Conference on Stability, Economic Coordination and Governance in the European Union provided by the Fiscal Compact.
Nicola Lupo is Professor of Public Law at LUISS Guido Carli University, Rome.
Cristina Fasone is Assistant Professor of Comparative Public Law at LUISS Guido Carli University, Rome.
May 2016 | 9781782256977 | 384pp | Hardback | RSP: £60
Discount Price: £48
Friday, July 29, 2016
As part of a government review of the state of civil justice in England, a proposal has been made - and has been approved by the Law Society (the organization governing solicitors) - for a new online resolution system for civil cases.
Tuesday, July 26, 2016
The Seventh International Legal Ethics Conference took place July 14-16 at Fordham Law School’s Stein Center for Law and Ethics. The conference is supported by the International Association of Legal Ethics and was sponsored, in addition, by a variety of law firms and law schools, including our own law school. We were proud to sponsor this provocative and informative conference.
One of the panels at the conference was devoted to current ethical issues in criminal advocacy from an international and comparative perspective. Panelists addressed a variety of fascinating issues arising in Germany, Israel, the United Kingdom, Chile, Australia and the United States. I was pleased to be the moderator of the panel. A summary of the presentations follows:
CURRENT ISSUES IN DEFENSE ETHICS
Anat Horovitz, Hebrew University, Israel
Re-trials are the procedure prescribed under Israeli law through which a person who claims to have been wrongfully convicted can try to reverse his conviction. From a legal perspective, the chances of success in an application for re-trial are extremely limited. Since 1948, the Supreme Court has granted a re-trial in only 28 cases, which resulted in the exoneration of 21 convicts. Thus, one of the important challenges that the Public Defender’s Office has focused upon in recent years is the need to bring about change within Israeli society and its legal system in respect to recognition and treatment of wrongful convictions.
Under the Israeli Public Defender Law, the National Public Defender can file a request for re-trial on behalf of a convict, if he or she “determined that there is room to file a request for re-trial on his behalf”. Over the past few years, the Re-trial Department in the Israeli Public Defender’s Office has received between 30-40 applications a year, and following a long and tedious process, filed on average one request a year.
In my presentation, I intend to focus on the extent to which the Public Defender’s Office may take into account its institutional role and aspirations when deciding upon the cases it chooses to pursue and the manner in which these cases should be presented. Examples for dilemmas that can arise in each of these two stages include 1) whether or not to file a request on behalf of inmates who raise only partial claims of innocence, and 2) to what extent a Public Defender’s Office should attempt to prove another person’s guilt as a means to secure its client’s innocence. Had it been a legal clinic, in the first example, or a private attorney, in the second example, I doubt if these issues would have been regarded as problematic, but in the context of a Public Defender’s Office it is unclear how they ought to be approached and to what extent strategic and ideological considerations should impact the way these applications and cases are handled.
Stephanie Roberts, University of Westminster, UK
My presentation looks at the role of defence lawyers in wrongful convictions in England and Wales. I am currently doing an empirical study on our Court of Appeal and I will be using a sample from that where the grounds of appeal have been lawyer errors to see which ones will result in the conviction being overturned. We have had a large number of cases here where asylum seekers have been wrongly convicted of criminal offences such as arriving with a false passport because their lawyer has not explained to them that there is a statutory defence available and they have pled guilty to the charge. The Court of Appeal has now dealt with a number of these and quashed the conviction so I can link the discussion of defence lawyer ethics. In the limited time for presentations, I will go through the empirical findings of what errors result in an overturned conviction.
CURRENT ISSUES IN PROSECUTION ETHICS
Shawn Marie Boyne, IU McKinney School of Law, US
For decades, German prosecutors were bound by the principle of mandatory prosecution that mandated that they prosecute any case in which sufficient evidence exists to suspect that a crime has occurred. Beginning in the 1970s however, changes in the legislative code and changes in prosecutorial practice began to erode the force of that principle. As a result, in the vast majority of “minor” crime, cases are settled with a fine, a deferred sentence, or a dismissal. At first glance, this practice appears to be consistent with American plea bargaining. However, in contrast to American practice, the crimes that fall into the “minor” crimes category include crimes that are considered to be felonies in the United States, notably rape and corruption. Though those classification decisions are made by the German legislature, they are compounded by the organizational incentives in German prosecution offices that favor efficiency over painstaking investigation and prosecution. These factors, plus the German system’s comparatively lenient sentencing practices, play a large role in explaining why German prosecutions have not fueled an American-style incarceration explosion. In domestic violence and rape cases, these factors prevent German prosecutors from using the criminal justice system to reinforce the goal of gender equality. Indeed, German prosecutors’ turn towards efficiency has undermined what Damaska labelled as the role of the activist state in the criminal justice process.
Because lay jurors in Germany seldom affect a case’s judicial outcome, there are three main “checks” on prosecutorial decision-making. To begin, victims may appeal a prosecutor’s dismissal decision to the General Public Prosecutors Office. Also, assuming that a sex crimes case makes it to trial, German law allows victims to be represented by a private prosecutor (Nebenklager) who functions like a party in the American system. Finally, if a prosecutor’s work product falls below standards or if a prosecutor breaks the law, the prosecutor may face administrative sanctions.
In this presentation, I argue that taken together, these checks on prosecutorial discretion do not adequately protect victims of sex crimes and domestic violence. As I point out the deficiencies of these systems of control, I will address the question: Why aren’t prosecutors more assertive in prosecuting these types of cases? Is it simply a matter of resources or is it attributable to larger issues in German society?
Marny Requa, Georgian Court University, US
This talk focuses on decisions to pursue criminal cases against police officers and members of the military in Chile for torture and mistreatment. The Chilean criminal justice system has undergone significant reform since 2000. Incidents that arose before the reforms are still dealt with under the old system, generally with magistrates investigating and making prosecutorial decisions after private parties have initiated a case. In the past 15 years, magistrates have been more willing to prosecute these cases. Recent incidents are most commonly prosecuted by a new, independent public prosecutor’s office (Ministerio Público), although a vast number of these are not pursued. Decision-making in both types of cases raises political as well as ethical considerations that have changed over time, a point emphasized in empirical research conducted as part of an ongoing research project titled Lawyers, Conflict and Transition, funded by the UK Economic and Social Research Council. The talk will cover key points from that research impacting on prosecutorial decisions as well as formal and informal forms of accountability.
Lawrence Hellman, Oklahoma City University School of Law, US
Prosecutorial misconduct is now understood to be widespread in the American criminal justice system. Official misconduct was a factor in half of the 1800+ known wrongful convictions in the United States that have been corrected by post-conviction remedies since 1989. However, existing accountability systems provide insufficient deterrents to misconduct by prosecutors, and they do little to motivate and enable prosecutors to deter official misconduct on the part of other state actors involved in prosecutions.
I propose consideration of a new approach to prosecutorial accountability that draws on the successful transition to a proactive management-based regulatory system that has been adopted in Australia for incorporated legal services providers. I will describe how a proactive management-based model of prosecutor accountability might function and suggest how it might be implemented without necessarily applying it to the entire American legal profession. The proactive model would supplement, not replace, the current reactive system. It would be designed to reduce not only the misconduct of prosecutors themselves, but also misconduct of other state actors, such a police, investigators, and laboratory scientists. By reducing official misconduct in the criminal advocacy process, wrongful convictions should become less common and meritorious prosecutions should reach more reasonable outcomes.
Kellie Toole, University of Adelaide, Australia
In Australia, a prosecutor must be satisfied of a ‘reasonable prospect of conviction’ before prosecuting a person for a serious crime. The assessment of the reasonable prospects often involves a relatively objective assessment of available evidence. However, ethical issues arise where witness credibility is critical, as with sex offences, and jury decisions can be unpredictable or even undesirable. Prosecutors have to decide whether to proceed where they assess that a jury might convict but should not, or might not convict but should. This situation raises issues about the prosecutorial role of the community (through the jury) and the State (through the prosecutor), and the fine line between prosecutors properly exercising their discretion, and improperly usurping the decision-making role of the jury.
Sunday, July 10, 2016
Last week, the German parliament finally took a key step towards reforming Germany's backward rape laws. Given that German constitutional law privileges human dignity, it is incomprehensible that, until last week German law required women to fight back against their rapists if they hoped that the state would prosecute their attacker for rape. But then again Germany has long lagged behind the United States and Western Europe when it comes to defining what acts constitute rape. It was not until 1997 that spousal rape became a crime. Before the changes made last week, sexual assault was only classified as rape if the sex was forced by violence, specific threats, or if the perpetrator exploited the victim's vulnerability of the victim. Until now, unwanted sex did not qualify as a rape even if the victim asked the perpetrator to stop. No was not enough. On top of that, behaviors such as "groping, grabbing a person's breasts, crotch or behind" were not even considered to be a punishable crime.
Under the new law, "any person who ignores the 'obvious will' of a victim can face up to five years in prison. Moreover, a spoken "no" finally means "no." In addition, acts such as aggressive groping now qualify as criminal offenses.
Although the new law no longer insists that women physically resist unwanted sex, the change in the law by itself is not enough to protect victims of sexual assault and to punish perpetrators. The state's lenient sexual assault laws have created a culture that discourages victims from coming forward. In fact only one in ten rapes is currently reported. Of that 10%, judges hand down convictions only 10% of the time. This suggests that the attitudes of police, prosecutors, and judges must change if Germany is to make any headway in prosecuting rapists.
Unfortunately, the incident that appears to have motivated the change in the law is not a case of a German man raping a German women. Instead, it involves the widespread attacks on women that occurred in Cologne on New Year's Eve that were allegedly committed by Muslim immigrants and refugees. Despite the widespread reports of assaults committed on that evening, to date, prosecutors have convicted only two men of sexual assault stemming from those attacks. Both of the defendants came to Germany from the Middle East. In line with the level of the crime under German law at the time, a court only imposed a suspended one-year sentence on both defendants.
Naomi Conrad, "Paradigm Shift on Sexual Offenses: No Means No," Deutsche Welle, July 7, 2016.
Friedl Taub, "Germany Redefines Rape: A Survey of International Laws," Deutsche Welle, July 7, 2016.
Tuesday, June 21, 2016
Professors Brian J. Love (Santa Clara University School of Law), Christian Helmers (Santa Clara University Department of Economics), and Markus Eberhardt (University of Nottingham Department of Economics) have recently made public a very interesting study they have done on patent litigation patterns in Chinese courts. Their study is particular interesting in that it challenges many of the widely held assumptions that China’s relatively new patent system and the dramatic rise in patenting in China are part and parcel of a protectionist, “anti-foreign” regime.
As Love and his co-authors note in their paper (available at http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1920&context=facpubs), China did not even have a patent system until 1985. Nonetheless, due in large part to the Chinese government’s concerted efforts in the last few years to encourage patent filing and enforcement, patent applications and patent litigation in China now outstrip those in the U.S. The stated aim of the 2008 implementation of the China State Council’s National Intellectual Property Strategy is to encourage innovation, but because this campaign has focused more on increasing patenting rather than on increasing innovation, many outside China suspect that the government’s efforts are actually designed to foster piracy and “cribbing” of technologies invented outside of China. Love et al.’s findings on patent litigation in China between 2006 and 2011 contravene these suspicions in a number of ways:
Contrary to fears that foreign patentees would face bias in the Chinese court system, Love et al.’s study shows that:
- Foreign litigants were more likely to be patent enforcers than alleged infringers in Chinese patent cases and just as likely as Chinese patentees to win their cases. Median damage awards to foreign patentees were also equivalent to that of their Chinese counterparts.
- State-owned Chinese litigants, by contrast, were more likely to be accused infringers than patent enforcers, and while state-owned defendants lost only a minority of their cases, they paid
- Patent litigation was highly concentrated in large cities such as Beijing, Shanghai, and Guangzhou, where protectionist bias toward local inventors is thought to be less prevalent.
Similarly, despite suspicions that Chinese patents generally are lower in “quality” than those in the U.S. or other jurisdictions, Love et al. show that:
- The vast majority of the patents-at-issue in the cases surveyed were filed well before China’s National IP Strategy was developed and thus not the result of a haphazard flurry of patenting under the Strategy. A sizable minority of the patents-at-issue also had related patents in other jurisdictions. (Although the same invention can be claimed in various ways and different jurisdictions still vary somewhat in rigor of patent claim examination, the underlying inventions must be of high enough “quality” to achieve patent approval in multiple jurisdictions.)
- The relatively advanced age of the patents-at-issue also suggests that the patents were not part of rush to patent inventions already successful in other countries simply for immediate assertion Chinese courts. (Chinese patents with related patents in foreign jurisdictions were also presumably held by the same entity, again indicating that the inventions claimed in the Chinese patents were not simply “cribbed” from foreign inventors).
Professors Love, Helmers, and Eberhardt acknowledge, of course, that more recent patent litigation patterns may have changed since the implementation of China’s campaign to encourage patenting. Like all good scholarship, however, their study does make us think twice about many of our assumptions.
Monday, June 20, 2016
Richard L. Cupp, of Pepperdine University School of Law, has a new article on SSRN that is forthcoming in the Cincinnati Law Review. The article is entitled "Animals as More than "Mere Things," but Still Property: A Call for Continuing Evolution of the Animal Welfare Paradigm." The article compares current law in France, other nations, and the European Union highlighting animals' capacity to suffer with current law in the United States, and calls on jurisdictions in the United States to look to these other nations' approaches in emphasizing animals' special status as property capable of suffering. To read the article in full, click on the link below:
Sunday, June 19, 2016
Given the mass shootings in Orlando this week by a suspected lone wolf terrorist, in this post I highlight two SSRN articles that explore the tension between free speech and controlling the spread of terrorist advocacy.
1. Alexander Tsesis, "Terrorist Speech on Social Media," Vanderbilt Law Review, Vol. 70, 2017.
From the abstract:
The presence of terrorist speech on the Internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of civil liberties. The Supreme Court has erected a bulwark of associational and communicative protections to curtail government from stifling debate through overbroad regulations. On the other hand, the protection of free speech has never been an absolute bar against the regulation of low value expressions, such as calls to violence and destruction.
Terrorist advocacy on the Internet raises special problems because it contains elements of political declaration and self-expression, which are typically protected by the First Amendment. However, terrorist organizations couple these legitimate forms of communication with calls to violence, recruitment to training, and indoctrination to belligerence. Incitement readily available on social media is sometimes immediate or, more often, calibrated to influence and rationalize future dangerous behaviors. This is the first article to analyze all the Supreme Court free speech doctrines that are relevant to the enactment of a constitutionally justifiable anti-terrorism statute. Such a law must grant the federal government authority to restrict dangerous terrorist messages on the Internet, while preserving core First Amendment liberties. Legislators should develop policies and judges should formulate holdings on the bases of the imminent threat of harm, true threats, and material support doctrines. These three frameworks provide the government with the necessary constitutional latitude to prosecute dangerous terrorist speech that is disseminated over social media and, thereby, to secure public safety, without encroaching on speakers’ right to free expression.
2. Craig Forcese & Kent Roach, "Criminalizing Terrorist Babble: Canada's Dubious New Terrorist Speech Crime," Alberta Law Review, Vol. 53 No. 1 (2015). From the abstract:
Before the introduction of Bill C-51, the Canadian government expressed interest in a terrorism “glorification” offence, responding to Internet materials regarded by officials as terrorist propaganda and as promoting “radicalization.” Bill C-51 introduces a slightly less broad terrorism offence that applies to those who knowingly promote or advocate “terrorism offences in general” while knowing or being reckless as to whether terrorism offences “may be committed as a result of such communication.” This article addresses the merits of these new speech-based terrorism offences. It includes analyses of: the sociological data concerning radicalization and “radicalization to violence”; existing offences that apply to speech associated withterrorism; comparative experience with glorification crimes; and the restraints that the Charter would place on any similar Canadian law. We conclude that glorification offence would be ill-suited to Canada’s social and legal environment and that even the slightly more restrained new advocacy offence is flawed. This is especially true for Charter purposes given the less restrictive alternative of applying existing terrorism and other criminal offences to hate speech and speech that incites, threatens, or facilitates terrorism. We are also concerned that the new speech offence could have counter-productive practical public safety effects. We favour that part of Bill C-51 that allows for court-ordered deletion of material on the Internet that was criminal before Bill C-51, namely material that counsels the commission of terrorism offences. However, Bill C-51’s broader provision that allows for the deletion of material that “advocates or promotes the commission of terrorism offences in general” suffers the same flaws as its enactment of a new offence for communicating such statements.
Wednesday, May 25, 2016
Get the table of contents of every new volume published in Ius Gentium: Comparative Perspectives on Law and Justice.
Friday, May 20, 2016
Jenia I. Turner, of SMU Dedman School of Law, has published a new article entitled, "Plea Bargaining and Disclosure in Germauy and the United States: Comparative Lessons," at 57 Wm & Mary L. Rev. 1549 (2016). The article tracks the introduction of broader discovery in the United States that more closely resembles German rules that has occurred simultaneously with the German move closer to US style plea-based criminal justice. To read the article, in full, click on the link below:
Monday, May 9, 2016
The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) is pleased to invite submissions to fill a panel on “New Perspectives in Comparative Law,” to be held at the Society’s 2016 Annual Meeting ASCL Annual Meeting, which will be held October 28-29, 2016 at the University of Washington in Seattle. The purpose of the panel is to highlight the scholarship of new and younger comparativists. The younger scholars who are selected for the panel will each be paired with a senior discussant in their field who will provide comments and suggestions on their papers.
Submissions will be accepted on any subject of public or private comparative law from scholars who have been engaged as law teachers for ten years or fewer as of July 1, 2016. Only scholars who are affiliated with ASCL-member institutions are eligible to participate on the panel.
The Scholarship Advisory Group of the YCC will review submissions with the authors’ identities concealed. Up to two submissions will be chosen for the panel. Submissions will not be accepted from scholars whose work has been featured in a prior younger scholars' panel at the ASCL Annual Meeting.
To submit an entry, scholars should email an abstract of 1000-1500 words (including footnotes) no later than Friday, June 24, 2016, at 5:00 pm CDT to Yolanda Huggins at the following address: email@example.com. Please indicate “ASCL Annual Meeting Submission” in the subject line. Late submissions will not be accepted. Abstracts should reflect original research that will not yet have been published by the time of the Society’s Annual Meeting. The abstract should be accompanied by a separate cover sheet indicating the author’s name, title of the paper, institutional affiliation, contact information, and a statement confirming that the author (or at least one of the authors, if co-authored) has been engaged as a law teacher for ten years or less as of July 1, 2016 and is affiliated with an ASCL member institution. The abstract itself must not contain any references that identify the author or the author’s institutional affiliation.
Sunday, April 24, 2016
I'm recently back from ASCL's Works-in-Progress Workshop held last weekend at the University of Illinois College of Law. Seven papers were discussed at the workshop. If you write in the field of comparative law, having a draft selected to be discussed at this workshop is an extraordinary opportunity for receiving feedback from experts in the field. The annual conference is organized by several leading comparative law scholars including: Maximo Langer (UCLA), Jacqueline Ross (University of Illinois), and Kim Lane Scheppele (Princeton). This year, the workshop papers represented a variety of nationalities and topics in both public and private comparative law. Antonia Baraggia (University degli Studi di Milano), Wei Cui (University of British Columbia), Yuliya Guseva (Rutgers), Adam S. Hofri-Winogradow (Hebrew University), Mariana Pargendler (Escola de Direito-Brazil), and Bui Ngoc Son (National University of Singapore).
Wednesday, April 20, 2016
With special guest blogger YiYang Jiang (Clifton Wolcott), third-year undergraduate student at the School of Law, Shanghai University of Political Science and Law
China has long had the reputation for fostering rampant piracy of copyrighted works. The Chinese legal system has made great strides in addressing such piracy, including accession to various international conventions on intellectual property rights and implementation of a copyright law very similar to those in the U.S. and elsewhere. Enforcement of these copyright laws has apparently been somewhat lax in the past, but even this has improved in recent years, at least with regard to blatant reproduction of protected works. The Chinese government has heightened its copyright enforcement efforts by increasing the number of raids on counterfeiters, deliberating on several enhancements to administrative enforcement abilities, enhanced infringement penalties, and perhaps even increasing public perception of copyright infringement as illegal. Protection of copyrighted works may have a way to go yet in China, but China does seem to be making progress.
One of the issues that the Chinese copyright system is also facing is infringement not through out-and-out reproduction of a work in part or in whole but rather infringement by copying only isolated elements of a protected work in order to create a new work. Such partial copying raises issues not only of infringement but also of the copyrightability of the elements copied. A prime example of this is at issue in a case currently pending before the Northern District of California. U.S.-based companies Blizzard Entertainment, Inc. and Valve Corporation sued uCool, Inc. and China-based Lilith Games Co. Ltd. for infringement of the characters, among other elements, in Blizzard and Valve’s copyrighted video games. At least two of the characters in Lilith’s mobile game Soul Hunters, for example, are clearly copied in large part from those in Blizzards’ game World of Warcraft (“WoW”). Although not exactly like their WoW counterparts, the Lilith characters have the identical clothing, weaponry, and even skin color; the only real difference between the two sets of characters is that Lilith’s versions are more cartoon-like, two-dimensional, and cuter than WoW’s more three-dimensional and intimidating versions. Both us feel that such a high degree of imitation, although not exact reproduction, clearly indicates Lilith’s intent to free-ride on the success of Blizzard’s games.
Indeed, the characters, scenes, storylines, and other elements in Blizzard’s immensely popular and profitable games have apparently been the subject of rampant copying in China and elsewhere. Blizzard does not yet seem to have filed suit in mainland China, however, although it has filed suit in Taiwan against Longtu Games for copyright infringement of Blizzard’s characters. If Blizzard decided to file suit against Lilith and others in China, it is unclear whether Blizzard would prevail. Neither the U.S. nor the Chinese copyright statute states that characters as copyrightable subject matter, and indeed, infringement involving characters entails difficult questions of copyrightability, a problem Blizzard and Valve face in their lawsuit in the U.S. In dismissing (with leave to amend) Blizzard and Valve claim of infringement of the copyright in their games’ characters, the District Court noted that characters are most often not separately copyrightable subject matter and that the plaintiffs therefore face a significant hurdle in showing that their game characters are the exception to the rule. As with most copyrightability issues, the copyrightability of characters as stand-alone “works” depends on the particularity with which they are expressed. Blizzard could not, for example, assert a character copyright over all weapon-toting mythical creatures in general because these are stock characters common to many video games. Blizzard can, however, assert copyright ownership over a particular character if it is “especially distinctive” – whether Blizzard can meet this standard remains to be seen.
It also remains to be seen what approach the Chinese courts will take to any potential claims of character copyright infringement that Blizzard might file in the future. Chinese often apply the same legal standards that courts in the U.S. and other countries use when it comes to intellectual property cases, although the approach often varies in practice. Indeed, the Chinese courts have addressed a number of cases similar to Blizzard’s, including a number where the defendant was alleged to have copied popular cartoon characters on unauthorized consumer goods (e.g., Ltd. Shenzhen Huaqiang Digital Animation Co. v. Vanguard Superstore; Futabasha Publishers v. Ltd. Shanghai Enjia Trade Development Co.) or in video games characters (e.g., Creative Power Entertainment v. Shaanxi YouJiu Digital Technology Co., Ltd.). The Chinese courts have frequently found for the copyright owners in these cases, but in doing so, the courts have protected the copyrighted characters not as characters per se but as “fine arts” (Article 3(4)) – what under U.S. copyright law would be considered pictorial or graphic work (17 US.C. § 102(a)(5)). This is perhaps a wiser, as the copyrightability of illustrated or animated characters is easier to determine when classified as pictorial or graphic works, avoiding the question of whether the underlying character is a separately copyrightable work; where a character is based on a literary description or live-action depiction, by contrast, the determining copyrightability unavoidably involves more difficult issue of “exceptional distinctiveness.” That being said, the courts in these cases have also looked not only at the similarity between the two works but also the fame or reputation of the characters at issue, suggesting that the Chinese courts may also have implicitly adopted aspects of the U.S. approach to the copyrightability of characters more generally.
Sunday, April 3, 2016
Edward Elgar Publishing has just published the "Research Handbook on Global Administrative Law." The book is edited by Sabino Cassese,
This Handbook explores the main themes and topics of the emerging field of Global Administrative Law with contributions by leading scholars and experts from universities and organizations around the world. The variety of the subjects addressed and the internationality of the Handbook’s perspectives make for a truly global and multi-dimensional view of the field.
The book first examines the growth of global administrations, their interactions within global networks, the emergence of a global administrative process, and the development of the rule of law and democratic principles at a global level. It goes on to illustrate the relationship between global law and other legal orders, with particular attention to regional systems and national orders. The final section, devoted to the emergence of a global legal culture, brings the book full circle by identifying the growth of a global epistemic community.
The Research Handbook on Global Administrative Law provides a contemporary overview of the nascent field in detailed yet accessible terms, making it a valuable book for university courses. Academics and scholars with an interest in international law, administrative law, public law, and comparative law will find value in this book, as well as legal professionals involved with international and supranational organizations and national civil servants dealing with supranational organizations.
Here is a link to the book's Table of Contents.
Friday, March 18, 2016
Two recent articles in The Criminal Law Review highlight possible changes in the adversarial system in England.
First, new Crown Prosecution guidance allows prosecutors to prepare some vulnerable witnesses before their testimony at trial, although coaching as we know it in the United States remains forbidden. Laura Hoyano, Reforming the Adversarial Trial for Vulnerable WItnesses and Defendants,  2 Crim. L. Rev. 107.
Second, an article describes recent case law that seeks to make clear that the object of cross-examination is to investigate the truth through clear, understandable questions rather than to so-called ‘put the case’ to the witness or trap the witness in inconsistencies. Emily Henderson, Theoretically Speaking: English Judges and Advocates Discuss the Changing Theory of Cross-Examination, 2 Crim. L. Rev. 929.