Comparative Law Prof Blog

Rationalizing Rational Basis Review using the Law of Nations

Todd Shaw, a J.D. student at the Northwestern Pritzker School of Law, recently posted a paper on SSRN entitled "Rationalizing Rational Basis Review." From the abstract:

As a government attorney defending economic legislation from a constitutional challenge under the Fourteenth Amendment, how would you rate your chances of success? Surely excellent. After all, hornbook constitutional law requires only the assembly of a flimsy underlying factual record for economic legislation to pass rational basis review.

But the recent uptick in courts questioning the credibility of legislative records might give pause to your optimism. As a growing body of scholarship has identified, the Supreme Court and federal courts of appeals increasingly invalidate laws under rational basis review despite the presence of an otherwise constitutionally sufficient legislative record. Under this “credibility-questioning” rational basis review, courts both ignore post hoc rationales that would legitimate a government interest and scrutinize the fit between the challenged statute’s means and ends. Nevertheless, recent scholarship has overlooked why courts have, and should, engage in credibility-questioning rational basis review, particularly of economic legislation.

This article proposes an answer by looking to the “law of nations,” or ius gentium: Courts should apply credibility-questioning rational basis review to economic legislation that benefits concentrated interest groups at the expense of diffuse majorities. This answer follows from an examination of the ius gentium. Specifically, the laws and judicial practices of Germany, Japan, South Africa, and Brazil regarding economic legislation evidence an emerging normative consensus that American courts may consider in reviewing challenges to certain types of economic legislation, such as occupational licensing measures.

Why may American courts consider such laws and practices? Because those laws and practices represent, in a Hayekian sense, “a system of spontaneous legal order [better] able to process larger amounts of disparate bits of information than any central planner could.” And when may American courts consider such laws and practices? If and only if a challenge is brought under an underdeterminate constitutional provision, such as the Equal Protection Clause of the Fourteenth Amendment. The meaning of underdeterminate provisions must be constructed. The laws and practices of other nations may, in certain circumstances, be an appropriate method of construction.

The SSRN link is: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3083807

YCC Seventh Annual Conference: Call for Papers

The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) is pleased to invite submissions for its Seventh Annual Conference, to be held on April 20-21, 2018, at Case Western Reserve University School of Law in Cleveland, Ohio. The purpose of the conference is to highlight, develop, and promote the scholarship of younger comparativists.

Conference Subject-Matter and Eligibility

Submissions will be accepted on any subject in public or private comparative law from scholars who have been engaged as law teachers, lecturers, fellows, or in another academic capacity no earlier than July 1, 2008 (i.e., less than ten years as of June 30, 2018). Submissions from full-time faculty, research fellows and graduate students are equally welcome.

Submission Instructions

To submit an entry, scholars should email an attachment in Microsoft Word or PDF containing an abstract of between 500 and 750 words to [email protected]. The deadline for submission is December 31, 2017. Abstracts received thereafter will not be considered.

Abstracts should reflect original research that will not yet have been published (but may have been accepted for publication) by the time of the conference. They should also include the author’s name, title of the paper, institutional affiliation, contact information, and three to five keywords. In the email, the author should certify that she/he qualifies as a younger scholar. Graduate students should identify themselves as such in the email.

Proposals for fully formed panels are encouraged. Panels must center around a common theme and include a confirmed list of panel members, abstracts for each presenter, and other required information. Please include the words “Panel Proposal” in the subject line of your email.

Plenary Panel

In addition, the conference will convene a Plenary Panel on the theme of Comparative International Law. Abstracts should address the ways a particular jurisdiction approaches one or more disciplines of international law. For example, scholars may discuss Chinese approaches to international human rights law, U.S. approaches to investment law, E.U. approaches to free trade agreements, or other topics. Proposals of an explicitly comparative nature (e.g. Canadian and French approaches to international humanitarian law) will be of particular interest.

Each scholar may make only one submission. Both individual and co-authored submissions will be accepted. For co-authored submissions, both authors must qualify as younger comparativists. The conference’s Program Committee will assign individual and co-authored submissions to thematic panels according to subject area.

Notification

Authors of the submissions selected for the conference will be notified no later than January 30, 2018. There is no cost to register for the conference but participants are responsible for securing their own funding for travel, lodging and other incidental expenses. A limited number of travel stipends, of up to $400, may be awarded to those who indicate financial need. Priority will be given to faculty and students of ASCL Member Institutions, and thereafter to authors from nonMember institutions. If you would like to be considered for a travel stipend, please make that request in your submission, and indicate your institution’s status. All scholars selected for the conference—other than graduate students who wish to be considered for the Colin B. Picker graduate student prize listed below (and have an earlier deadline)—must submit final papers by email to [email protected] no later than March 15, 2018.

Colin B. Picker Graduate Student Prize

The YCC will award the Colin B. Picker Prize for the best paper submitted by a graduate student. To be considered for the award, in addition to submitting an abstract by the above deadline, graduate students whose abstracts are accepted for the conference must also submit their papers in their final form by January 31, 2018, to [email protected] with the following subject line: “Submission for Graduate Student Prize.”

Phanor J. Eder Prize in Comparative Law

The YCC will award the Phanor J. Eder Prize for the best paper submitted by a J.D., B.A., or LL.B. or other student who has not yet completed the first law degree as of April 1, 2018. The author(s) of the winning paper will receive a modest stipend to help defray the costs of attending the Conference and presenting the paper there. A separate call will be forthcoming with the details of the Phanor J. Eder competition. Final papers will be due on January 28, 2018, in order to be considered for the competition. Inquiries should be directed to Valentina Rita Scotti, Chair of the Affiliates Advisory Group of the YCC, at [email protected].

Acknowledgements and Questions

The Younger Comparativists Committee gratefully acknowledges the support of the Case Western Reserve University School of Law and the American Society of Comparative Law. Please direct all inquiries to Tim Webster, Chair of the Program Committee, by email at [email protected].

YCC Board

Virginia Harper Ho (Kansas) (Chair) Joshua Karton (Queens) (Vice-Chair) David Landau (FSU) (Treasurer) Ioanna Tourkochoriti (Galway) Tim Webster (Case Western Reserve)

The Director of Public Prosecutions, Gauteng v. Oscar Leonard Carl Pistorius

   In the latest chapter in the Oscar Pistorius case, on November 24th, South Africa's Supreme Court of Appeal has set aside Oscar Pistorius' sentence imposed on  July 6, 2016. In 2014, Pistorius was originally found guilty of one count of Culpable Homicide as well as one count of South Africa's Firearms Control Act for killing his girlfriend Reeva Steenkamp. Although Pistorius was originally sentenced to a prison term of five years, prosecutors appealed that sentence, charging Pistorius should have foreseen that his actions would result in death. As a result, in December 2015, South Africa's Supreme Court of Appeal set aside the verdict of culpable homicide holding that Pistorius should have been found guilty of murder and not culpable homicide and ruling against his defense of private defense.

 At that time, the Supreme Court held that Pistorius was guilty of murder and sent the case back to the trial court for resentencing. According to South African case law, prosecutors may reserve questions of law for appeal if a case does not result in an acquittal ( S v Basson 2007 (1) SACR 566 (CC)). According to the Supreme Court's 2015 decision, because culpable homicide is a lesser included offense of murder, the presence of a conviction on the lesser included offense, opened the door to an appeal on matters of law by the prosecutor. In its 2015 decision, the Supreme Court found that the trial court's determination of the defendant's mental state was flawed.

In its latest decision, the South African Supreme Court set aside Pistorius' 2016 sentence finding that it was too lenient. In its place, the Court imposed a sentence of 13 years, 6 months imprisonment. According to South African law, individuals convicted  of murder that is not planned or premeditated, "shall be sentenced to imprisonment for a period of not less than 15 years, unless there exist substantial and compelling circumstances as contemplated by s 51(3) of the CLAA justifying the imposition of a sentence lesser than the prescribed minimum sentence." The Supreme Court found that the aggravating factors in the case, namely the number of shots fired, the fact that the accused had been trained in the use of firearms, and the lack of an escape from the bathroom where the shots were fired outweighed the mitigating factors. In particular, the Supreme Court stated that the defendant did not appear to be remorseful. Moreover, the members of the Supreme Court felt that the trial court had overemphasized the defendant's personal circumstances and had privileged the prospects for rehabilitation over the other goals of criminal punishment such as retribution, prevention, and deterrence.

 Although Pistorius may appeal this latest decision to South Africa's Constitutional Court, that Court denied an earlier appeal by Pistorius.

 

 

   

Call for Papers: Slavery Past, Present & Future: 3rd Global Meeting (Berlin July 10, 2018)

Throughout history, slavery (the purchase and sale of human beings as chattel), enslavement (through conquest, and exploitation of indebtedness, among other vulnerabilities), and similar extreme forms of exploitation and control have been an intrinsic part of human societies. 

Is slavery an inevitable part of the human condition?

Controversial estimates indicate that up to 35 million people worldwide are enslaved today.  This modern re-emergence of slavery, following legal abolition over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of the individual victims and communities.

This conference will explore slavery in all its dimensions and, in particular, the ways in which individual humans and societies understand and attempt to respond to it. 

The varieties of contemporary forms of exploitation appear to be endless.  Consider, for example, enslavement or mere “exploitation” among:

fishermen in Thailand’s booming shrimping industry,
children on Ghana’s cocoa plantations,
immigrant farmworkers on U.S. farms,
truck drivers in the port of Los Angeles.
prostituted women and girls on the streets and in the brothels of Las Vegas,
the dancing boys (bacha bazi) of Afghanistan,
the sex workers of The Netherlands’ Red Light Districts and in Italian cities,
Eritrean and other sub-Saharan Africans fleeing to Israel and trafficked and exploited in the Sinai,
Syrian refugees in Jordan, Turkey, and Lebanon, and
migrant workers from Southeast Asia and other countries who flock to the oil rich Gulf States for work.

Does the persistence and mutations of different forms of extreme human-of-human exploitation mean that the world may not have changed as much as contemporary societies would like to believe since worldwide abolition and the recognition of universal individual and collective human rights?  Like the ‘consumers’ of past eras, such as early industrialization, are we dependent on the abhorrent exploitation of others? 

Potential themes and sub-themes of the conference include but are not limited to:

Defining Slavery: What do we mean when we talk about “slavery”
Using “slavery” to obscure other endemic forms of exploitation
Teaching and learning about historic slavery and contemporary forms of exploitation
Slaveries of the Past
Classical (Egyptian, Greco-Roman, etc.) slavery
Conquests and colonizations – Aboriginal Australians, indigenous peoples of the New World, dividing and colonizing Africa and Asia
Slaveries in Europe before the Trans-Atlantic Slave Trade and Industrialization, such as villeinage and serfdom
Trans-Atlantic Slavery and the trans-Atlantic Slave Trade
Systems of slavery in tribal and traditional societies
WWII and post-WWII forced labor camps
Human Trafficking and other Forms of Contemporary Exploitation
Definitions
Types of human trafficking
Organ trafficking
The focus on sex trafficking: reasons, purpose, effects
Can nation states enslave?
Is human trafficking “slavery”
Contemporary usage and depictions of slavery
Civil society anti-trafficking activism:
   Methodologies
   Effectiveness
Anti-trafficking policies and legislation
Assessing contemporary anti-trafficking and/or anti-“slavery” Initiatives
Systems and Structures of Enslavement and Subordination (historic and contemporary)
Role of slavery in national and global economies
Economic, political, legal structures – their role in enslavement and exploitation
Slavery’s impact on culture
Cultural impacts of historic slavery
Voices of the Enslaved
Slave narratives of the past and present
Descendants’ interpretation of their enslaved and slave-holding ancestors
Legacies of slavery
Identifying and mapping contemporary legacies – economic, social, cultural, psychological
Assessment of slavery’s impact – economic, political, other
Commemorations of enslavers and/or the enslaved
Debating reparations
Anti-slavery movements:
Reparations
Economic compensation
Restorative justice
Teaching and learning about slavery
Relationship to the global racial hierarchy
Abolitionism and law: effects and (in)effectiveness
The role of media and social media

Submissions to this conference are sought from people from all genders and walks of life, including academics (from multiple disciplines, such as art, anthropology, sociology, history, ethnic studies, politics, social work, economics) and non-academics; social workers, activists, and health care professionals; government representatives and policy makers; former slaves and indentured laborers; members of at-risk populations such as migrant and guest workers, non—regularized immigrants, and refugees.  

Conference Committee:
Karen E. Bravo (Indiana University Robert H. McKinney School of Law, IN, USA)
David Bulla (Augusta University, GA, USA)
Sheetal Shah (Webster University, Leiden, The Netherlands)
Polina Smiragina (University of Sydney, Australia)

Submitting Your Proposal

Proposals should be submitted no later than Friday, March 2, 2018 to:

Karen E. Bravo, Indiana University Robert H. McKinney School of Law, Indianapolis: [email protected]
E-Mail Subject Line: Slavery Past Present & Future 3 Proposal Submission
File Format: Microsoft Word (DOC or DOCX)
The following information must be included in the body of the email:
Author(s)
Affiliation as you would like it to appear in the conference program
Corresponding author email address

The following information must be in the Microsoft Word file:
Title of proposal
Body of proposal (maximum of 300 words)
Keywords (maximum of ten)

Please keep the following in mind:

All text must be in Times New Roman 12.
No footnotes or special formatting (bold, underline, or italicization) must be used.

Evaluating Your Proposal
All abstracts will be double-blind peer reviewed and you will be notified of the Organizing Committee’s decision no later than Friday, 16 March 2018.  If a positive decision is made, you will be asked to promptly register online. You will be asked to submit a draft paper of no more than 3000 words by Friday, 01 June 2018.
The conference registration fee is Euro (€) 200. Please note that we are not in a position to provide funding to facilitate your participation.

Publication:
A selection of papers will be published in an edited volume, to be submitted to Brill’s ‘Studies in Global Slavery’ book series.

Constitutional disorder: The perils of the Catalonian crisis in the populist zeitgeist

Today's guest post was written by Ana Cannilla-a doctoral researcher at the University of Readings' School of Law.

 

Events in the Catalonian crisis are unfolding at high speed. Over the last years, demands for greater devolved powers and the call for a referendum seeking independence in Catalonia have encountered several legal and political resistances. Remarkably, the Spanish Constitutional Court watered-down the expansive 2010 reform of the Catalan Statute of Autonomy while alternative channels for a legal consultation have remained unattended – as accurately explained by Andrés Boix Palop´s in the Verfassungsblog and by Elisenda Casanas Adam in the UKConstitutionalLawBlog. In the aftermath of the financial crisis, the pro-independence movement won space in the social arena and, in 2015, parties representing this view gained 47.7% of votes in the plebiscitary elections held in Catalonia. On September 2017, the resulting secessionist majority enacted the Self-Determination Referendum Act -which was immediately suspended by the Spanish Constitutional Court- calling for a referendum on the 1st October. As the international media has informed, the referendum had a considerable turnout of 42%, despite being openly illegal and heavily repressed by the Spanish forces.

But what has happened since the 1-O referéndum? Last Tuesday, and in an atmosphere of absolute uncertainty, the President of Catalonia, Carles Puigdemont, addressed the Catalonian parliament and stated the following: “I hereby assume, in presenting the results of the referendum, the people’s mandate that Catalonia becomes an independent state [sic]”. His words were cheerfully celebrated by the crowd gathered around the Parliament but only briefly since, a few seconds later, Puigdemont stated: “I urge this Parliament to suspend the effect of this declaration in order to open a process of dialogue”. Despite the reasonable confusion upon such curious speech, Catalonia was not independent for those 8 seconds. As provided by article 4 of the Referendum Act -and by basic commitment to the rule of law and separation of powers principles- an unilateral declaration of independence was to be solemnly declared by the Catalonian Parliament. Puigdemont’s declaration had thus no pretension of legal validity - it is clear he has no legitimacy to declare an UDI under the current conditions. Still, in a new turn on the ontology of constitutional law and even before the Parliament’s session had finished, the Constitutional Court announced that the declaration would be nullified the next day.

So far, this has not occurred because the Spanish Prime Minister, Mariano Rajoy, resorted on Wednesday to the article 155 of the Spanish Constitution. This article is twofold: Rajoy must urge Catalonia to comply with the Spanish law and if Catalonia ignores the order, the Spanish Senate will consider the implementation of necessary measures to force the territory to comply with it. For the time being, Rajoy has urged Puigdemont to clarify by next Thursday whether any Catalan authority has or has not declared Catalonia’s independence. A few minutes after the request, the leader of the opposition party, Pedro Sánchez, announced an agreement with Rajoy to reform the Spanish Constitution without giving details on its content and extension. On the same day, the radical left party (CUP) that supports Puigdemont in the Catalan Government threatened to abandon Parliament until independence is declared. Upon this context, it is difficult to foresee how the situation will evolve in the coming days - snap elections in Catalonia, called by Puigdemont or forced by Rajoy through article 155 are a bet on rise.

In any event, such a bewildering situation should not distract us from the extremely alarming scenario behind it. As it is known, Spain suffers a severe economic crisis whose effects are still heavily felt in domestic economies, discontent towards our political leaders is towering and trust in our political institutions is in its lowest levels. In the middle of this situation, reactions to the 1-O referendum reminds us that nationalisms (both Spanish and Catalan) can emerge as the most efficient mechanism of social and political articulation that political leaders can use. Unfortunately, the different demonstrations repeated throughout these days have allowed us to verify that the fact that Spain has not openly witnessed the rise of a far-right party does not mean that the extreme-right is inexistent nor ill-equipped. Indeed, Spain is exemplary in its peaceful demonstrations. Rallies and activities regarding the Catalan issue have developed most of the time untroubled, as shown in the conciliatory demonstration spontaneously called through social media under the motto Hablemos? (Shall we talk?). However, some exceptions are clearly disturbing. Several demonstrations organized by pro-referendum groups have suffered violent attacks by ultra groups, as is the extreme case of Valencia. Ultra-catholic and far-right groups followed eagerly the demonstration for the unity of Spain in which members of the government and the opposition participated. The days prior to the referendum, the far-right besieged an act organized by the left party Podemos in Zaragoza and another concentration in Madrid included Nazi salutes and the Francoist hymn. In an questionable decision, the Government decided during Thursday’s celebration of the Spanish National Day (Columbus Day), and for the first time since 1983, that the military march would include a prominent representation of the national police, whose violent intervention in the Catalan referendum was highly polemical. On the same day, Barcelona suffered new riots from ultra groups. None of these images, together with the lack of strong condemnation from the Spanish Government in the rise of these actions, will help to delegitimize violence and radicalism.

The current situation shows the difficult position in which Spanish political parties are today. While it is obvious that the only solution to the Catalan demand will at some point be a legal referendum (80% Catalans want to vote), Rajoy cannot assume the costs of a transfer of unionist voters to its competitor Ciudadanos. In this sense, sceptics are right to lack faith on the new proposal of a constitutional reform put forward by PP and PSOE. Indeed, a constituent process or a substantial reform of the constitution would be a great chance to solve some of the problems that Spain encounters; but it is unfeasible to complete a reform that satisfies Catalan demands for self-determination or for higher levels of self-government under Rajoy´s mandate. The Spanish Constitution allows two kinds of reforms. Under article 167 (“express” reform), several reforms have been completed in agreement between PP and PSOE before. This article allows for partial reforms of the constitution that do not modify its core sections, such as the “indivisibility of the Spanish nation”. Complete reforms or core reforms (article 168) have never occurred before and as I just mentioned, it is doubtful that it will happen in the short term. In a final ironic turn of the Catalan case for self-determination, the former reform would require a majority vote in the Senate (where PP enjoys absolute majority), while the latter would actually require a national referendum!

In the current situation, thus, there are no easy solutions for the Catalan problem. It is yet to see what will be Puigdemont´s next move on Thursday; and how Rajoy will react to it – both are under high pressure from their supporters and electoral competitors. Despite the many troubles already encountered, and despite the terrible threat that an escalating strategy implies in relation to the Spanish far-right movement, it seems that a dialogue process will not follow shortly. This has only just started.

Wrongful Enrichment: A Study of Comparative Law and Culture (Oxford: Hart)

Dr Nahel Asfour, who has lectured on Private Law and Culture, Property and Restitution Law Theory at the University of Vienna and currently lectures on Remedies Law at Tel-Aviv University as teaching fellow, has recently published a comparative legal study of the doctrine of wrongful enrichment. 

From the publisher:

This book analyzes enrichment law, its development, and underpinning in social culture within three geographical regions: the United States, western members of the European Union, and the late Ottoman Empire. The regions chosen correspond, though imperfectly, with three different legal traditions, namely, the American, continental, and Islamic traditions.

The book argues that we should understand law as a mimetic artefact. In so doing, it explains how typical patterns and exemplary articulations of wrongful enrichment law capture and reiterate vocal cultural themes found in the respective regions. Nahel Asfour identifies remarkable affinities between poetic tendencies, structures, and default dispositions of wrongful enrichment law and cultural world-views. Asfour offers bold accounts of each region's law and culture, providing fertile grounds for external and comparative elucidations of the legal doctrine.

The Spanish Constitutional Tsunami: is a Spectre Haunting Europe? Guest Post by Domenico Giannino

 

The next 1^st of October will be a pivotal moment in Spanish constitutional history because of the by now famous Catalan Llei del referèndum d'autodeterminació, which regulates the holding of a binding self-determination referendum on the independence of Catalonia.

This law is the climax of almost ten years of Catalan drift towards independence started with the massive 2010 Catalan autonomy protest. Theodore Roosevelt famously stated that “the more you know about the past, the better you are prepared for the future"; in the case of the Catalan independence referendum, the past is represented by the issues related to the Estatuto de Autonomía de Cataluña. The Catalan statute was approved by the Catalan Parliament on September 2005 with a majority of 88% (only the Spanish Popular Party voted against) and sent to the national Parliament for approval by law. The national legislative assembly strongly amended the act with the result that the Catalan statute was defined, by Professor Roberto Blanco Valdes, apocryphal and the turnout to the confirmative referendum was relatively low.

The icing on the cake was the sentence of the Spanish Constitutional Tribunal n.31/2010 on the Catalan statute, where we find everything and its opposite. Without going into too much legal detail, the restrictive interpretation of the Tribunal of large portions of the Catalan statute – approved with substantial majorities by both the Spanish and Catalan parliaments – was questionable at best. There were very sharp political reactions in Catalonia against this sentence that culminated on the 10^th July 2010 in the massive autonomy protest "Som una nació. Nosaltres decidim”. In the following years – as history often repeats itself – it was again the Spanish Constitutional Tribunal who led the ‘Catalan performance’, at least from a legal point of view. In March 2014 the Constitutional Court ruled against the Declaration on the Sovereignty and Right to Decide of the People of Catalonia, recognizing – within the Spanish constitutional framework – the right to decide, which cannot be extended to self-determination. Finally, the court has ruled – on 7 September 2017 – not only to suspend the Catalan referendum law, approved by the parliament of the Generalitat of Catalonia, but also personally to warn the 948 Catalan mayors and 62 senior officials of the Generalitat that they cannot participate in the organization of the referendum.

In 2014 the Catalan government decided to carry on with the referendum transforming it in a process of citizen participation, the results of which were in favour of the independence; however the ridiculously low turnout supports the theory of pro-unity silent majority. The Catalan government these days is clearly showing its intention to go ahead with the 1-O independence referendum.

The legal aspects of the referendum are simpler than the political debate suggests, the Spanish and Catalan governments are clearly fighting a media battle where there is no room for truth. The tension between national police and demonstrators, after the arrest of some Catalan officials, shows that both governments are playing a dangerous game that can easily go out of control.  

However the ‘false truth’ of the Spanish government is supported – whether we like it or not – by strong legal and constitutional grounds.

Firstly in the Spanish legal system calling for a referendum is a competence of the central government, consequently the Catalan government did not have the constitutional power to approve the Llei del referèndum d'autodeterminació. Furthermore even if the referendum had been legal, it would have been only advisory and consultative.

Secondly in International law, even less in EU law, it is quite hard to find rational legal grounds to support this act. As underlined by the constitutional law professor Ismael Peña, this is an unprecedented event and we should not use XX century international law to address XXI century issues. In my opinion the legal system should not be used to solve political problems, a serious and fair political negotiation is the only way out from the Spanish constitutional tsunami.

The Catalan case is opening a totally new scenario in the history of Europe: it is the first time a European region – as the former Commissioner for Human Rights of the Council of Europe, Álvaro Gil-Robles, has stated – acts against the democratic constitutional order of its own State using a referendum which is unconstitutional, unilateral and not recognised by any other State. This may be one of the symptoms of a process of legal ‘glocalisation’, with the States losing their sovereign powers in favour of both supranational organisations and subnational entities. This twofold tendency has been bolstered by the effects of the ongoing economic crisis, as Napoleon has taught as, c’est l’argent qui fait la guerre.

 

This blog is authored by Domenico Giannino, PhD in Public Comparative Law at University of Calabria, Italy; Associate Lecturer at London Metropolitan University, UK; and Law Module leader at Kaplan International College.

The Rise of the Far Right in Germany

Although Angela Merkel retained her Chancellorship in yesterday's German election, the far right (Alternative fuer Deutschland-AfD) party won a remarkable 12.6% of the vote.  According to the preliminary results, the AfD's expected 88 seats in the Bundestag outpace the number of seats won by the other non-dominant parties: FDP (80), Left (69), and the Greens (67).  The party brought 690,000 voters to the polls who had not voted in 2013. 

Unsurprisingly, the AfD did well in the states that formed party of the former East Germany securing 20.5% of the vote in the East and only 10.7% in the West. Early reports cite voters concerns about the benefits that immigrants are drawing while some Germans, most notably those in the eastern states, suffer from high unemployment, small pensions, as well as drug and alcohol problems. Still it would be a mistake to define the party as comprised only of individuals who are doing less well economically. In fact, 39% of party members earn a higher than average income.

It is not a given that the party's rise in support will cause Merkel to dramatically shift the government's current policies. The party's leadership is not cohesive. In fact, one of the party's leaders, Frauke Petry, who lobbied the party to adopt a pragmatic political approach announced today that she would not represent the party in the Bundestag. In addition, when Merkel was asked whether the increase in the AfD's strength would affect Germany's foreign, European, and refugee parties, she replied in the negative. The bigger concern is whether the dissatisfaction with the country's immigration policies will affect the treatment of immigrants on the streets.

Policing and Terrorism: Guest Post by Dr. Melissa Hamilton

We are pleased to publish this guest post by Dr. Melissa Hamilton. Dr. Hamilton is a Senior Lecturer of Law and Criminal Justice at the University of Surrey School of Law. Her SSRN page may be accessed here.

Recent terrorist acts in the United Kingdom (e.g., Parsons Green tube station; Manchester) and the United States (e.g., Charlottesville; Alexandria) led me to consider the differences between the nations in terms of how they each have empowered (or not) local police officers to prevent terrorism. The focus herein is not on specialized counter-terrorist squads, border patrols, or immigration enforcement. Instead, this discussion concerns search and seizure powers of police officers on the streets when they might encounter potential terrorist activities.

The UK Parliament has afforded street officers special investigatory powers with respect to terrorism that US officials have not. This disparity suggests that in the UK, line officers are more likely seen as having a potential role to play in preventing and investigating illegal activities that rise to the level of terrorism. One wonders why US officials, whether federal or state, have not likewise more prominently embraced the capacity and abilities of local police officers in this respect.

In brief, the UK’s Terrorism Act 2000, as amended, permits police to take certain search and seizure actions that they would otherwise not have the legal ability to perform regarding non-terrorist crimes. These include the following:

• Police may, within a specified area in which a senior officer “reasonably suspects that an act of terrorism will take place,” stop a vehicle, search the vehicle and items within, and search persons in the vehicle. Police may stop and search any pedestrians in the designated area. Such searches are permissible even without any suspicion that the vehicles or persons specifically are involved in terrorist activities or that evidence of terrorism will be found. In addition, within the specified area, an officer may seize any items that the officer “reasonably suspects may constitute evidence” of terrorism.

• Police may cordon off an area designated by a senior officer who “considers it expedient for the purposes of a terrorist investigation” for 14 days and order persons to leave the area, remove vehicles, and prohibit access by pedestrians or vehicles.

• Police may arrest without a warrant a person who is reasonably suspected to be a terrorist. The suspect may be detained for longer periods of time than non-terror arrestees. Under certain circumstances (generally regarding risk of violent retribution or loss of evidence), police may decline to notify the terror suspect’s family or friends of the detention and/or deny the suspect access to counsel.

It appears reasonably likely that similar provisions would be upheld by American courts within the Fourth Amendment’s search and seizure protections. These sorts of targeted rules arguably fall within the United States Supreme Court’s “special needs” doctrine. The Court has approved various exceptions in its Fourth Amendment jurisprudence when authorities are able to justify them as serving important governmental interests.

Examples of approved special-needs types of searches and seizures are drunk driving roadblocks, strip searches of arrestees at jail intakes, and drug tests of US Customs employees. Perhaps more relevant is the Supreme Court’s approval of certain suspicionless searches at the border because of the government’s heightened interest in national security. In another case, the high court in dicta noted that police actions to thwart an imminent terrorist act may justify a warrantless stop and search which would not otherwise be legally permissible in other circumstances.

Importantly, terrorism investigations should no longer be the exclusive domain of specialized and elite counter-terrorism squads. While intelligence gathering of terrorist groups may require targeted training, resources, and technological capabilities, group-based terrorism is not the only concern these days. Lone wolf terrorists are also wreaking havoc in Western countries. Empowering street officers to be able to detect, deter, and investigate all terroristic activities might well justify additional intrusions upon individual privacy and liberty to the greater public benefit.

 

 

 

Conference for "Younger" Comparative Law Scholars - Japan, July 2018

We are pleased to share a link for this conference for the "younger" comparative law scholars among us.

 

http://www.iconnectblog.com/2017/06/call-for-papers-younger-scholars-forum-in-comparative-law-xxth-international-congress-fukuoka-japan-july-25-2018.

Puzzling over Big Data and Data Protection Rights in a European Perspective

We are pleased to publish this guest post by Monica Cappelletti, a Post-Doc Researcher, at Dublin City University (DCU).

Puzzling over Big Data and Data Protection Rights in a European Perspective¹

The Big Data phenomenon,² the latest evolution of information and communication revolution, is radically transforming the daily lives of people. At the same time, redefines the relationship between individuals and power, whose definition itself is becoming more and more nuanced and articulated. In this context, we should wonder about the legal notion of Big Data and, consequently, what the impact of this phenomenon is on privacy and data protection rights.

From a technical point of view, Big Data is a type of data that has 4Vs: it is a high-Volume, high-Velocity, high-Value and high-Variety “information assets that demand cost-effective innovative forms of information processing for enhanced insight and decision making."³ In other words, Big Data derives from a complex data analysis process, which leads to varied techniques, such as the use of algorithms, the collection of “all data”, and the opacity of the processing.⁴

Focusing on the European legal framework and the new General Data Protection Regulation (Regulation EU 2016/679 - GDPR) , it is worth noting three open questions: one regarding the non-expressed definition of Big Data in legal term; another one concerning the consequences on personal data notion; and a third one dealing with the concept of data protection right as a fundamental right.

1. Big Data definition
Although there is no explicit definition of Big Data in the GDPR, it is possible to recover this concept indirectly from the notion of profiling. This “consists of any form of automated processing of personal data evaluating the personal aspects relating to a natural person, in particular to analyze or predict aspects concerning the data subject’s performance at work, economic situation, health, personal preferences or interests, reliability or behavior, location or movements” (recital 71 and article 4, GDPR).⁵

Given the complexity and the evolutionary nature of Big Data, the EU legislator preferred not to mention or specify this particular type of data as an autonomous one, but instead to focus on activities of the process, more precisely on those activities and analysis that are possible through this data. In some ways, we have been moving from the definition of type of data perspective (personal data, sensitive data, etc.) to the specification of the process approach, that elaborates different categories of data.

This trend of emphasizing the process in order to conceptualize Big Data⁶ has been confirmed recently by the European Parliament, arguing that “big data refers to the collection, analysis and the recurring accumulation of large amounts of data, including personal data, from a variety of sources, which are subject to automatic processing by computer algorithms and advanced data-processing techniques using both stored and streamed data in order to generate certain correlations, trends and patterns.”⁷

2. Personal Data definitions and Big Data
The shift towards the process may have an impact on the European traditional categories of data (personal data and sensitive data, articles 4, n.1 and 9, GDPR), that tend to blur. In fact, compared to classification of personal/ sensitive data, we are faced with something innovative. Although Big Data can consist of personal, or even sensitive data, new data categories are emerging, such as observed data, derived data or inferred data.⁸  These new categories are generated automatically by technology even if they are linked partially to a person. Consequently, we should wonder what kind of legal guarantees should be implemented in order to ensure the same standard of protection of fundamental rights, whenever these new data categories affect directly individuals’ private life.

Furthermore, the GDPR has specified some peculiar sensitive data, such as genetic and biometric data (article 14, nn. 13 and 14, GDPR). Regarding the latter, it is worth pointing out that this notion is broad enough to include physical and physiological features of a person, as well as behavioral characteristics.⁹  In other words, we should reshape the conception of sensitive data, since it seems to identify not only “racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership” (article 9, GDPR), but also what is linked with our behavior as a whole. In this perspective, we should, firstly, delineate what behavior is, and secondly identify the “new” line between what it is sensitive and what is not.

3. Data Protection as a fundamental right
The third open query set is the issue of data protection as a fundamental right, more specifically if it is an autonomous right or a specification of privacy right . Due to the Big Data phenomenon, we should address a different phase in the legal debate. As a matter of fact, the essence of the guarantee should be more centered towards data and right of individuals to protect and control their own personal information, considering that there is a new asymmetry between these two rights. In other words, the axis should be no longer imbalanced in favor of protecting privacy of individuals, but be increasingly in favor of the protection of personal data.

4. Concluding remarks
The multidimensional Big Data phenomenon suggests new and unprecedented fronts in the field of personal data protection. The challenge depends not only on the achievable implementation of privacy by design principles, already embodied in the GDPR, but also on the strengthening of data protection right as an autonomous and distinct fundamental right, providing for specific safeguards and guarantees increasingly.

However, since a large part of information used in Big Data analytics may concern “behavioral information” of people, constitutional and legal solutions (in terms of individuals - rectius data subjects - rights and data security requirements) should coincide with a greater awareness of each person about its rights to control its own data flow in an effective and transparent way.
As freedom of expression had shaped the democratic society, data protection right would be the pillar of future hyper-technological society.

Footnotes

1.  Short summary of the discussion paper presented at the 2017 ICON Annual Conference (University of Copenhagen, 5-7 July 2017).
2. Big Data is currently a hot topic that requires much scrutiny. Consider the everyday news regarding Big Data, for example, such as concerning the use of algorithm in finance or security. Recently, O’Neil, How can we stop algorithms telling lies?, in The Guardian, July 16, 2017, available at https://www.theguardian.com/technology/2017/jul/16/how-can-we-stop-algorithms-telling-lies. Regarding a preliminary legal reflection consider Zeno-Zencovich, Vincenzo, and Giannone Codiglione, Giorgio, Ten Legal Perspectives on the “Big Data Revolution”, 23 Concorrenza e Mercato 2016 (February 1, 2017). - Special Issue on Big Data (F. Di Porto ed.), 29-57, available at SSRN: https://ssrn.com/abstract=2834245.
3. For the 4Vs theory see Iafrate, Fernando, Advances in information systems set. From big data to smart data [2015]. Consider also Information Commissioner’s Office, Big Data, artificial intelligence, machine learning and data protection, 6 [2017], available at https://ico.org.uk/for-organisations/guide-to-data-protection/big-data/.
4. Information Commissioner’s Office describes aspects of big data analytics in Big Data context, see Information Commissioner’s Office, Big Data, artificial intelligence, cit., 10-14.
5. Regarding Big Data and the new Regulation refers to European Commission, The EU Data Protection Reform and Big Data (Factsheet), March 2016, available at http://ec.europa.eu/justice/data-protection/files/data-protection-big-data_factsheet_web_en.pdf.

6. In the European framework there are a lot of definitions of Big Data. However, all these notions point out the “process nature” of it. Refer to the European Data Protection Supervisor, Opinion 7/2015, Meeting the challenges of big data, 19 November 2015, 7. Recently, ID., Opinion 8/2016, EDPS Opinion on coherent enforcement of fundamental rights in the age of big data, 23 September 2016. Consider also that one of the Article 29 Data Protection Working Party, Statement of the WP29 on the impact of the development of big data on the protection of the individuals with regards to the processing of their personal data in the EU, adopted on 16 September 2014. Lastly, it is remarkable to mention that even the Council of Europe has recently adopted Guidelines on the protection of individuals with regards to the processing of personal data in a world of Big Data (T-PD(2017)01), Strasbourg, 23 January 2017.

7. European Parliament, Fundamental rights implications of big data. European Parliament resolution of 14 March 2017 on fundamental rights implications of big data: privacy, data protection, non-discrimination, security and law-enforcement (2016/2225(INI)), P8_TA-PROV(2017)0076 (Provisional Edition), March 17, 2017.
8. Information Commissioner’s Office, Big Data, artificial intelligence, cit., 12-14.
9. Biometric data definition according the GDPR “biometric data means personal data resulting from specific technical processing relating to the physical, physiological or behavioral characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data” (article 4, n. 14, Regulation (EU) 2016/679).

10. In the EU context privacy right and data protection right are expressly recognized by articles 7 and 8 of the EU Charter of Fundamental Rights. There is a wide legal debate regarding autonomous or separated nature of these rights; among different comments, please refers to Lynskey, Orla, The Foundations of EU Data Protection Law, Oxford University Press, 2015; Tzanou, Maria, Is Data Protection the Same as Privacy? An Analysis of Telecommunications’ Metadata Retention Measures, 17(3) Journal of Internet Law, 2013, 20-33.

Call for Comparative Law Syllabi

For all of you who have taught Comparative Law, if you would be willing to share your syllabus, I'd be most grateful! I'm slated to teach the course this fall and have elected to use the Glendon et al. casebook, but I'm not entirely satisfied with the coverage. In particular, I've taught Japanese Law in the past and have found it greatly beneficial to my students the discussions the course raised about cultural attitudes toward the rule of law, socio-cultural and religious influences on the law's treatment of minorities, women, family law, separation between church and state, and so on. I don't know that these subjects have been covered in as much depth in the Comparative Law casebooks currently available, so I would welcome all suggestions!!!

Book Announcement: The Foundations and Traditions of Constitutional Amendment

Hart Publishing has released a new book as a part of the Hart Series in Comparative Public Law entitled THE FOUNDATIONS AND TRADITIONS OF CONSTITUTIONAL AMENDMENT. Editor(s): Richard Albert, Xenophon Contiades, Alkmene Fotiadou.

From the book announcement: 

There is growing interest in constitutional amendment from a comparative perspective. Comparative constitutional amendment is the study of how constitutions change through formal and informal means, including alteration, revision, evolution, interpretation, replacement and revolution. The field invites scholars to draw insights about constitutional change across borders and cultures, to uncover the motivations behind constitutional change, to theorise best practices, and to identify the theoretical underpinnings of constitutional change.

This volume is designed to guide the emergence of comparative constitutional amendment as a distinct field of study in public law. Much of the recent scholarship in the field has been written by the scholars assembled in this volume. This book, like the field it hopes to shape, is not comparative alone; it is also doctrinal, historical and theoretical, and therefore offers a multiplicity of perspectives on a subject about which much remains to be written.

This book aspires to be the first to address comprehensively the new dimensions of the study of constitutional amendment, and will become a reference point for all scholars working on the subject. The volume covers all of the topics where innovative work is being done, such as the notion of the people, the trend of empirical quantitative approaches to constitutional change, unamendability, sunrise clauses, constitutional referenda, the conventional divide between constituent and constituted powers, among other important subjects. It creates a dialogue that cuts through these innovative conceptualisations and highlights scholarly disagreement and, in so doing, puts ideas to the test. The volume therefore captures the fierce ongoing debates on the relevant topics, it reveals the current trends and contested issues, and it offers a variety of arguments elaborated by prominent experts in the field. It will open the way for further dialogue.

 

The Death of Nobel Prize Winner Liu Xiaobo

      China's Nobel Peace Prize winner and political prisoner, Liu Xiaobo, died Thursday. Liu was first imprisoned following the pro-democracy protests in Beijing's Tiananmen Square. Following those protests, the Chinese government killed untold numbers of individuals and imprisoned hundreds for crimes linked to the demonstrations.

       Despite that initial imprisonment, Liu continued to advocate for human rights, freedom of expression, and an independent judiciary. He was imprisoned three more times and spent his final days in a hospital after being diagnosed with advanced liver cancer.

       Liu is only the second winner of the Noble Peace Prize to die while being held in prison. The first was Carl von Ossietzky, who died in a German prison in 1938 while serving a sentence for opposing  Hitler's Nazi regime.

Top Ten Recent SSRN Downloads for Comparative Law

 

Rank		Downloads
1	Between Universalism and Regional Law and Politics: A Comparative History of the American, European and African Human Rights Systems Alexandra Valeria Huneeus and Mikael Rask Madsen University of Wisconsin Law School and University of Copenhagen - iCourts - Centre of Excellence for International Courts Date Posted: 29 May 2017 Last Revised: 08 Jul 2017	160
2	Chinese Constitutionalism: An Oxymoron? Wen-Chen Chang and David S. Law National Taiwan University College of Law and Washington University in St. Louis - School of Law Date Posted: 02 Jun 2017 Last Revised: 05 Jun 2017	130
3	How a Court Becomes Supreme Richard Albert Boston College - Law School Date Posted: 30 May 2017 Last Revised: 30 May 2017	123
4	Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy Hannah L. Buxbaum Indiana University Bloomington Maurer School of Law Date Posted: 17 May 2017 Last Revised: 17 May 2017	116
5	Qualitative Methods for Law Review Writing Katerina Linos and Melissa Carlson University of California, Berkeley - School of Law and University of California, Berkeley, College of Letters & Science, Charles and Louise Travers Department of Political Science, Students Date Posted: 07 Jun 2017 Last Revised: 10 Jun 2017	114
6	The Political Economy of Chinese Bilateral Investment Treaty Policy Tyler Cohen and David Schneiderman Paul, Weiss, Rifkind, Wharton & Garrison LLP and University of Toronto - Faculty of Law Date Posted: 11 May 2017 Last Revised: 11 May 2017	93
7	How to Regulate the Regulators: Applying Principles of Good Corporate Governance to Financial Regulatory Institutions Hadar Yoana Jabotinsky and Mathias M. Siems Hebrew University of Jerusalem - Faculty of Law and Durham University - Durham Law School Date Posted: 02 Jun 2017 Last Revised: 02 Jun 2017	93
8	EU Company Law Harmonization Between Convergence and Varieties of Capitalism Martin Gelter Fordham University School of Law Date Posted: 01 Jun 2017 Last Revised: 16 Jun 2017	91
9	Land Law and Limits on the Right to Property: Historical, Comparative and International Analysis - LSGL Human Rights Group Paper Yiğit Sayın, Amnon Lehavi, Bertil Emrah Oder, Murat Onok, Domenico Francavilla, Victor Torre de Silva and Dean Sudarshan Koc University, Interdisciplinary Center Herzliyah - Radzyner School of Law, Koc University, Koc University, University of Torino, Instituto de Empresa and OP Jindal Global University - Jindal Global Law School (JGLS) Date Posted: 23 May 2017 Last Revised: 29 May 2017	89
10	Corporate Governance of SIFI Risk-Taking: An International Research Agenda Steven L. Schwarcz and Aleaha Jones Duke University School of Law and Duke University, School of Law, Students Date Posted: 23 May 2017 Last Revised: 07 Jul 2017	81

 

Digital Boundlessness and Legal Boundaries: Cyberattacks and the Need to Rethink Legal Categories

We are happy to publish this timely guest post by Pietro Ortolani who is a Senior Fellow at the Max Planck Institute Luxembourg for International, European, and Regulatory Procedural Law.

The Attack

On 12 May 2017, over 230,000 computers all over the world were infected by WannaCry, a virus encrypting the users’ files and demanding a ransom in bitcoin. The virus is based on a malicious piece of software, developed by the Equation Group (widely thought to be affiliated to the U.S. National Security Agency) and later stolen by a hacker group called ‘the shadow brokers’. The attack hit not only private users, but also national service providers such as the National Health Service in the UK and Deutsche Bahn in Germany. The purpose of this post is to offer some brief reflections on the increasing inadequateness of our traditional legal categories in the face of events like this, and the need to re-think the role of the law as a tool of State governance in times of digital globalization. 

A disruption of traditional legal boundaries

As a result of the global interconnectedness made possible by the Internet, conceptual legal boundaries such as private/public and national/international lose a lot of their explanatory purchase. Not only does digital globalization evince the growing untenability of the Westphalian representation of the world as a juxtaposition of self-contained national legal system; more interestingly, events like the recent cyberattack demonstrate the obsolescence of the legal tools we traditionally use to address cross-border phenomena, such as judicial cooperation or private international law. What national authorities should have jurisdiction to prosecute a crime with no substantial territorial link and an instantaneous random worldwide outreach? What forum should have jurisdiction for claims in tort arising out of similar events?

In the EU, the emergence of cyber torts has already demonstrated the inadequacy of criteria for the allocation of jurisdiction developed before the digital age. Criteria such as territoriality, which for a long time have been crucial for the allocation of jurisdiction among States, today are likely to result in chaotic overlaps.

Events such as the WannaCry attack highlight the urgent need to change our approach to the law as a tool of governance in an increasingly globalized world. 

The need to re-think the role of law

These basic observations suggest that States should radically re-think the way they react to cybersecurity threats, and more generally to transnational social phenomena. The central and quasi-monopolistic role that the State plays in our conception of both domestic and international law presupposes the existence of strong public regulatory powers, in respect of which private actors are (to borrow Jedediah Purdy’s words) ‘a plastic object of regulation’. The habit itself to refer to ‘the State’ as an abstract and idealized sovereign entity demonstrates how such a way of world making fundamentally shapes the thinking of both domestic and international lawyers. Globalization (of both trade and investment capital flows, and digital communications) challenges this cluster of institutional and ideological premises, and forces us to find new solutions, demonstrating the need for cooperation along two main axes: State-State and State-private.

From the first point of view, it is increasingly unconceivable for single States to react to such phenomena unilaterally, without a global coordination of efforts relying on basic shared policy choices. Such cooperation will probably need to go beyond the current framework of the Budapest Convention, whose territorial scope of application remains mainly limited to Western democracies. From the second point of view, these global events confirm the relevance of the problem of societal constitutionalism, exposing how multinational corporations (e.g. developers of operative systems) enable the provision of fundamental services and provide timely solutions, in a way that States (even with coordinated efforts) could not do alone.

In a nutshell, the most evident lesson we can draw from the WannaCry events is that the diffusion of digital technology on a global scale forces all States to cooperate not only with one another, but also with non-State actors whose embeddedness in different social systems blur the boundary between public and private. In other words, regulatory reactions to cyberattacks are likely to be effective only inasmuch as they are transnational, reflecting policy options widely shared by both public and private actors.

The need for States to re-imagine their role as global regulators is unavoidably mirrored by a similar challenge for us, for jurists. We must change the way we think about the law, and our position as lawyers, beyond the paradigm of State authority. Potentially, the transnationalization of law as a social science may force us to radically re-design the way we teach and learn our discipline in Universities, and the way we use legal categories in our professional and intellectual life. For lawyers, the digital revolution seems to trigger more questions than answers.

 

Top Ten Recent SSRN Downloads for Comparative Law

1	260	The Trajectory of American Corporate Governance: Shareholder Empowerment and Private Ordering Combat Jennifer G. Hill University of Sydney - Faculty of Law Date posted to database: 22 Feb 2017 Last Revised: 15 Mar 2017
2	252	Choice of Law in the American Courts in 2016: Thirtieth Annual Survey Symeon C. Symeonides Willamette University - College of Law Date posted to database: 17 Feb 2017 Last Revised: 27 Feb 2017
3	177	Statutory Divestiture of Tribal Sovereignty Matthew L. M. Fletcher Michigan State University College of Law Date posted to database: 22 Feb 2017 Last Revised: 11 Apr 2017
4	173	Massively Discretionary Trusts Lionel Smith McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law Date posted to database: 16 Mar 2017 Last Revised: 19 Apr 2017
5	112	What Does It Mean to Compare, and What Should It Mean? Christopher McCrudden Queen's University Belfast - School of Law Date posted to database: 10 Mar 2017 Last Revised: 17 Mar 2017
6	94	Dual Sovereignty in Europe? A Critique of Habermas's Defense of the Nation-State Vlad Perju Boston College - Law School Date posted to database: 15 Mar 2017 Last Revised: 15 Mar 2017
7	90	Going Global? Canada As Importer and Exporter of Constitutional Thought Ran Hirschl University of Toronto Date posted to database: 22 Mar 2017 Last Revised: 22 Mar 2017
8	89	Proportionality and Stare Decisis: Proposal for a New Structure Vlad Perju Boston College - Law School Date posted to database: 25 Feb 2017 Last Revised: 10 Mar 2017
9	88	Hohfeldian Analysis, Liberalism and Adjudication (Some Tensions) Pierre Schlag University of Colorado Law School Date posted to database: 29 Mar 2017 Last Revised: 8 Apr 2017
10	87	Governance Challenges of Listed State-Owned Enterprises Around the World: National Experiences and a Framework for Reform Curtis J. Milhaupt and Mariana Pargendler Columbia Law School and Fundação Getulio Vargas Law School at São Paulo Date posted to database: 29 Mar 2017 Last Revised: 24 Apr 2017

 

Outrageous Torture of Gay Men In Chechnya

Despite much of the negative optics surrounding the current administration's foreign policy, this week, Nikki Haley, U.S. Ambassador to the U.N. condemned reports of Chechnya's ongoing torture of gay men. Amidst reports of widespread torture as well as the imprisonment, Ambassador Haley stated, “We are against all forms of discrimination, including against people based on sexual orientation. . . When left unchecked, discrimination and human rights abuses can lead to destabilization and conflict."

While Chechen President Ramzan Kadyrov has repeatedly denied reports of abuse and torture, a growing list of international organizations have condemned the government-promoted actions occurring in Chechnya.

 

Top Ten Recent SSRN Downloads for Comparative Law

Rank	Downloads	Paper Title
1	316	Freedom of Information Beyond the Freedom of Information Act David Pozen Columbia Law School Date posted to database: 1 Feb 2017 Last Revised: 27 Feb 2017
2	289	The Basic Governance Structure: The Interests of Shareholders as a Class John Armour, Luca Enriques, Henry Hansmann and Reinier Kraakman University of Oxford - Faculty of Law, University of Oxford Faculty of Law, Yale Law School and Harvard Law School Date posted to database: 26 Jan 2017 Last Revised: 14 Mar 2017
3	222	The Trajectory of American Corporate Governance: Shareholder Empowerment and Private Ordering Combat Jennifer G. Hill University of Sydney - Faculty of Law Date posted to database: 22 Feb 2017 Last Revised: 15 Mar 2017
4	211	Choice of Law in the American Courts in 2016: Thirtieth Annual Survey Symeon C. Symeonides Willamette University - College of Law Date posted to database: 17 Feb 2017 Last Revised: 27 Feb 2017
5	173	Statutory Divestiture of Tribal Sovereignty Matthew L. M. Fletcher Michigan State University College of Law Date posted to database: 22 Feb 2017 Last Revised: 22 Feb 2017
6	137	Imposed Constitutions with Consent? Richard Albert Boston College - Law School Date posted to database: 4 Feb 2017 Last Revised: 4 Feb 2017
7	137	Transnational Legal Ordering and Regulatory Conflict: Lessons from the Regulation of Cross-Border Derivatives Hannah L. Buxbaum Indiana University Bloomington Maurer School of Law Date posted to database: 25 Jan 2017 Last Revised: 25 Jan 2017
8	108	Massively Discretionary Trusts Lionel Smith McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law Date posted to database: 16 Mar 2017 Last Revised: 16 Mar 2017
9	96	The Modular Approach to Micro, Small, and Medium Enterprise Insolvency Ronald B. Davis, Stephan Madaus, Alberto Mazzoni, Irit Mevorach, Riz Mokal, Barbara J. Romanine, Janis P. Sarra and Ignacio Tirado University of British Columbia (UBC) - Faculty of Law, Martin-Luther-University Halle-Wittenberg, Catholic University of Milan, University of Nottingham, South Square Chambers, Alberta Court of Queen's Bench, University of British Columbia (UBC), Faculty of Law and Universidad Autónoma de Madrid Date posted to database: 26 Jan 2017 Last Revised: 26 Jan 2017
10	93	The Administrative State and Its Law Michael Greve George Mason University - Antonin Scalia Law School, Faculty Date posted to database: 24 Jan 2017 Last Revised: 24 Jan 2017

Top Ten Recent SSRN Downloads for Comparative Law

RECENT TOP PAPERS for all papers first announced in the last 60 days
19 Jan 2017 through 20 Mar 2017

Rank	Downloads	Paper Title
1	307	Freedom of Information Beyond the Freedom of Information Act David Pozen Columbia Law School Date posted to database: 1 Feb 2017 Last Revised: 27 Feb 2017
2	270	The Basic Governance Structure: The Interests of Shareholders as a Class John Armour, Luca Enriques, Henry Hansmann and Reinier Kraakman University of Oxford - Faculty of Law, University of Oxford Faculty of Law, Yale Law School and Harvard Law School Date posted to database: 26 Jan 2017 Last Revised: 14 Mar 2017
3	203	Choice of Law in the American Courts in 2016: Thirtieth Annual Survey Symeon C. Symeonides Willamette University - College of Law Date posted to database: 17 Feb 2017 Last Revised: 27 Feb 2017
4	168	Statutory Divestiture of Tribal Sovereignty Matthew L. M. Fletcher Michigan State University College of Law Date posted to database: 22 Feb 2017 Last Revised: 22 Feb 2017
5	161	The Trajectory of American Corporate Governance: Shareholder Empowerment and Private Ordering Combat Jennifer G. Hill University of Sydney - Faculty of Law Date posted to database: 22 Feb 2017 Last Revised: 15 Mar 2017
6	146	Comparative Contract Law and Development: The Missing Link? Mariana Pargendler Fundação Getulio Vargas Law School at São Paulo Date posted to database: 17 Jan 2017 Last Revised: 22 Jan 2017
7	132	Transnational Legal Ordering and Regulatory Conflict: Lessons from the Regulation of Cross-Border Derivatives Hannah L. Buxbaum Indiana University Bloomington Maurer School of Law Date posted to database: 25 Jan 2017 Last Revised: 25 Jan 2017
8	130	Imposed Constitutions with Consent? Richard Albert Boston College - Law School Date posted to database: 4 Feb 2017 Last Revised: 4 Feb 2017
9	92	The Modular Approach to Micro, Small, and Medium Enterprise Insolvency Ronald B. Davis, Stephan Madaus, Alberto Mazzoni, Irit Mevorach, Riz Mokal, Barbara J. Romanine, Janis P. Sarra and Ignacio Tirado University of British Columbia (UBC) - Faculty of Law, Martin-Luther-University Halle-Wittenberg, Catholic University of Milan, University of Nottingham, South Square Chambers, Alberta Court of Queen's Bench, University of British Columbia (UBC), Faculty of Law and Universidad Autónoma de Madrid Date posted to database: 26 Jan 2017 Last Revised: 26 Jan 2017
10	84	The Administrative State and Its Law Michael Greve George Mason University - Antonin Scalia Law School, Faculty Date posted to database: 24 Jan 2017 Last Revised: 24 Jan 2017