Thursday, January 19, 2017
We are pleased to publish this guest post by Tom McDonnell who is a Professor of Law at the Elisabeth Haub School of Law at Pace University.
The United Kingdom vote last June to leave the European Union shocked then UK Prime Minister David Cameron, the so-called London elites, a large portion of the UK public, and the other EU countries. Brexit also presaged the success of Donald Trump in the United States. Theresa May, installed as UK Prime Minister in Cameron’s place, is now talking about a “hard Brexit” and is saying that she soon wishes to invoke article 50 of the Lisbon Treaty, the EU exit provision.
On January 7 at the Annual Meeting of American Law Schools in San Francisco, a panel of experts analyzed Brexit and its likely consequences. Darren Rosenblum, a professor at Pace University’s Elisabeth Haub School of Law, questioned the wisdom and validity of making such a momentous decision by a narrowly passed referendum. The vote was 51.9 percent to 48.1 percent. Timothy Nelson, a partner at the law firm of Skadden, Arps, observed that the 51.9 percent majority represents about 37 percent of UK voters, from mostly the British equivalent of US’s flyover states. He criticized the manner in which the referendum was worded, comparing it to the Pepsi versus Coke test, but leaving out the Coke. The wording looks facially neutral: “Should the United Kingdom remain a member of the European Union or leave the European Union?” His point appears to be that the question hardly helped the voter to understand the consequences of the choice.
From a trade perspective, Attorney Nelson and Roger Goebel, a Fordham Law School professor, noted that, on leaving the European Union, the UK would lose its free trade rights with the other 27 European Union members, and its goods and services would be subject to an average 4 percent tariff under the World Trade Organization. They predicted, as others have, that this result would deleteriously affect London’s finance and banking industry. Professor Goebel believed that EU organizations in the UK, organizations that employ a considerable number of Britons, would be transferred to other EU states. He did characterize as “good news” that Britons working in EU institutions in other parts of the EU apparently will not be discharged.
Racism and Immigration
A member of the panel criticized the Brexit vote as stemming from racism, particularly towards immigrants. Hate crimes were reported to be up 57 percent in the UK within four days of the vote. While more immigrants have moved to the UK, Attorney Nelson observed that thousands of Britons moved to other EU countries. Some commentators have noted that when the EU expanded to admit poorer countries like Poland, which paid their workers on average far less than more developed EU states, unsurprisingly a large number of people from the poorer countries immigrated to wealthier EU jurisdictions, like the UK. Since 2004 when Poland was admitted, more than 800,000 Poles have moved to the United Kingdom, with 65 million inhabitants. Professor Goebel predicted that the EU in the future will limit free immigration among the EU member countries.
Scotland and Northern Ireland
Attorney Nelson noted that Scotland voted by 62 percent to remain in the EU and Northern Ireland so voted by 56 percent. He predicted that should there be a “hard Brexit,” Scotland would likely move towards independence. Both Scotland and Northern Ireland have sought to participate in the case, discussed below, questioning the government’s power to leave the EU.
The United Kingdom Supreme Court
A lawsuit pending in the UK Supreme Court has challenged the Prime Minister’s authority to invoke article 50 without first obtaining the consent of Parliament. The British High Court (which is below the UK Supreme Court) ruled in November that the British ministers did not have the executive power to invoke article 50. The government appealed to the UK Supreme Court, which just announced that it will deliver its judgment next Tuesday, January 24. Should the UK Supreme Court affirm, it is expected that Parliament will nonetheless vote to leave the EU. A British law professor in the audience at the panel discussion urged the Conservative Party leadership to let the members of Parliament vote their conscience rather than hold them to the party line. He believed that a Parliament vote of conscience would result in the UK staying in the EU.
Nothing seems certain about Brexit’s consequences except uncertainty. Brexit does harken back to rising nationalism, mistrust of elites, and, at a minimum, a discomfort with “the other.” As in the United States, governments need to address the economic impact of deindustrialized communities and the displacement of the average worker by automation and outsourcing while at the same time stemming attitudes and policies of exclusion and racial, ethnic, and nationality discrimination.
Friday, January 13, 2017
Lawyers who speak both Spanish and English may be interested in a new book written by Professors S.I. Strong of the University of Missouri, Katia Fach Gómez of the University of Zaragoza and Laura Carballo Piñeiro of the University of Santiago de Compostela. Comparative Law for Spanish-English Lawyers: Legal Cultures, Legal Terms and Legal Practices / Derecho comparado para abogados anglo- e hispanoparlantes: Culturas jurídicas, términos jurídicos y prácticas jurídicas (Edward Elgar Publishing Ltd., 2016), is an entirely bilingual text that seeks to help those who are conversationally fluent in a second language achieve legal fluency in that language.
The book, which is aimed primarily at private international and comparative lawyers, is appropriate for both group and individual study, and provides practical and doctrinal insights into a variety of English- and Spanish-speaking jurisdictions. The book is available in both hard copy and electronic form, and Elgar is currently offering a discount on website sales. See http://www.e-elgar.com/shop/comparative-law-for-spanish-english-lawyers for more information.
Sunday, January 1, 2017
We are pleased to publish this guest post by Dr. Nafees Ahmad,LL.M, Ph. D. Professor Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights from the Aligarh Muslim University of India.
Racism in India: Equality Constitutionalism and Lego-Institutional Response
The 20th century has witnessed an agenda consisting of Left and liberal Left advocacy of international human rights alongside the liberal internationalism and an entrenched anti-state rhetoric. One of the most important U.S. advocates of international human rights towards the end of the preceding century Louis Henkin opines: “ours is the age of rights”. Therefore, human right is an inalienable part of equality constitutionalism across the geo-political spectrum. The pedigree of modern idea of human rights emanates from the 19th century to protect ethnic, racial and religious minorities and fight against racism and hate crimes. Minorities’ treaties under League of Nations and instruments of International Labour Organization are the testimony to substantiate the world commitment to curb and eliminate racism in its all forms. Further, United Nations Organizations (UNO), other Inter-governmental Organizations along with many individuals of international standing like Eleanor Roosevelt (US) and Hansa Mehta (India) immensely contributed in promoting and propagating the philosophy of human right and gender equality as the core element in law-making.
Racism is a reality and it is being perennially practiced and blatantly bloated in all societies across the geo-political spectrum in World Wide Web of equality, liberty and fraternity. Racism attacks all-encompassing normative system and erodes all aspects of human values in life. Primarily, racism is the most callous and conspicuous negation of human equality ordained by the collective wisdom in divinities, spiritualties and mundanities. However, the citadels of racism are still alive and kicking in every nook and corner of the world and India is not an exception. Despite the fact, India has been a victim since its existential history of staggering stages of colonialism and imperialism whereunder racism was the inalienable part of governance trajectory. Though, today Indians in US, UK, Canada, Australia and other parts of the world are being subjected to racial crimes attributable to the emerging trends of far right-wing political discourse in these countries. Even then India is still indulges with this profane practice with impunity. India is blessed with great diversity consisting of 29 States (Provinces) and 7 Union Territories (Federally Administered Provinces). India promotes “unity in diversity” shibboleth and prides its multi-culturalism and pluralism. As per government record, there are five major races in India such as Australoid, Mongoloid, Europoid, Caucasian, and Negroid who get proportionate representation in all walks of national life in India.
Gender Equality and Constitution of India
The scenario of the present day state of gender inequalities in every walk of life is clearer than ever. Human rights are social institutions and concern the quality of social relationships, economic equities and Institutional Justicialism within the gamut of common heritage of humankind and Justicial Developmentalism. The existence of human rights encourages individuals to demand more and more for themselves with little regard for how these demands may be met or who may be expected to provide for them contrary to their ostensive onus and ontology. In the world of gender parity, the situation has attained appalling proportions as women perform more than 67% hours of work but eke out only 10% of world’s income and own only 1% of the world’s property. Women get 30-40% less than men for an equal volume of work despite the fact that they hold 10-20% administrative and managerial positions. They also make up 5% of the heads of states. But, unfortunately, 70% of the 1.2 billion people living in poverty are female. 60% of the 130 million children in the age group of 6-11 years, who do not go to school, are girls. The women constitute 67% of the world’s 875 million illiterate adults and 3 out of 5 women are illiterate in South Asia. Globally speaking, there are 50% women out of all people living with HIV/AIDS. Approximately, 35% women worldwide have been subjected to either physical or sexual intimate partner violence or sexual violence by a non-partner at some stage of their lives. However, few national studies reveal that around 70% of women have been physically or sexually abused by their intimate partners.
The Constitution of India is a document of high endowments that bequests civil liberties and human freedoms to all Indians to lead their lives in peace and harmony. Articles 14 and 15 are the most important guarantees ever envisaged by the Constitution of India whereunder Right to Equality that addresses the issues of discrimination and provide equal protection of laws in India and Article 14 further confers the Right to Equality before the law and equal protection of laws throughout the territory of India and Article 15 prohibits the discrimination on the grounds of religion, race, caste, sex or place of birth. However, the biggest irony against the menace of racism is that these rights are available to the citizens of India but only against the Indian State and not against the discrimination that is practiced and committed by private individuals. Moreover, Article 16 stipulates the equality of opportunity to all citizens of India. Further, Article 39 (a) gives rights relating to the means of livelihood sans discrimination.
There are slew of other legislations enacted under the Constitution of India exclusively designed to safeguard equality and protection against racial discrimination such as The Criminal law (Removal of Racial Discrimination Act, 1949), Protection of Civil Rights Act, 1955, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Protection of Human Rights Act, 1993. In India, the instances of racial discrimination are manifested by resorting to utter some cusswords or swearwords like “Habshi (Carnivorous)”, “Pagal (Crazy), “Kalia (Black)”, “Monster”, “Chutia (Moron)”, “Chini-Mini (From China)” and “Chinkies (Chinese like)” against people from countries of Africa, Afro-Asia and North-East India. Therefore, in 2012 government of India recommended that all states notify the term “Chinki(es)” as an offence under The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 153 of the Indian Penal Code, 1860. The Constitution of India succors the country organize itself as a single geo-political entity wedded with the core principles of human rights, diversity, federalism, pluralism and multi-culturalism.
Racial Discrimination in India and International Law
The principle of non-discrimination is fundamental to international law in its all visages. The etiology of racism and racial hara-kiri is the sham similarity of the human body with the personality. This etiology of racism germinates a misconception that gestates and generates a compendium of conflicts of ethnic, gender, religious and sexual orientations. Individually, human body is blessed with a multitude of features and characteristics that are attributed to the human body based on these sham similarities. These attributions and imputations create impediments and mistrust among the human relationships in a diversity-driven society like India or elsewhere. Under International Law prohibition of racial discrimination has been ensured in all nine core international human rights treaties and International Court of Justice (ICJ) opined in Barcelona Traction Case (Belgium v. Spain, 1970) that “prohibition of racial discrimination” constitutes an erga omnes obligation (a legal obligation which all states have an interest in ensuring). Therefore, the 1965 UN Convention on Elimination of All Forms of Racial Discrimination (CERD) defines “racial discrimination” as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. Non-discrimination and equality before the law and of the law, according to UNO, constitute fundamental principles of international human rights law. Therefore, since 1967 India is also a party to CERD and it cannot back out from its international human rights obligations under Article 53 of the 1969 UN Convention on Law Treaties (VLCT). Thus, principle of non-discrimination postulates that all states must treat their citizens, subjects and nationals with equality before the law and must provide equal protection of laws.
The constitutional consolidation of rights has immensely immortalized the idea of equality which ultimately internationalized the paradigm of equality as human right. In the capitalist paradigm that operates in the USA, equality as human right can be understood in terms of economic, social and cultural rights as well civil and political rights as “All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Fourteenth Amendment declares that equal protection to all person not simply to ex– slaves or black persons and the Equal protection clause could be used to protect the rights of other classes of citizens as well. Throughout the nineteenth century and the early part of the twentieth century, the court consistently interpreted the fourteenth Amendment and other constitutional provisions not to require the equal treatment of races and of men and women.
Lego-Institutional Response to Racial Discrimination
National Human Rights Commission of India (NHRC) conducted a study that revealed 54% people from North-East India do not find New Delhi a safe and secure place to live in terms of ethnic tolerance. Whereas, 67% people from North-East faced ethnic and racial discrimination in New Delhi. The living and working conditions for North-East Indians in New Delhi and elsewhere in North India are horrible and inimical and in violation of sociological constitutionalism as propounded by the Supreme Court of India (SC) in the case of Karma Dorjee & Others v. Union of India & Others (December 14, 2016) whereby petitioner had alleged that people from north-eastern region, who move out of their states in search of better opportunities in studies and jobs, were subjected to racial taunts, hate crimes and violence on a daily basis due to their physical appearance at the hands of people of their own country.
The Ministry of Home Affairs having considered the magnitude of the racial and hate crimes against the people of North-East India in Delhi constituted a committee headed by Mr. M.P. Bezbaruah on February 05, 2014 to suggest suitable remedial measures to address the impugned issue of racism and hate crimes in India. The Bezbaruah Committee had submitted its report in 2014 whereunder it was recorded that 86 percent of migrated North-East Indians have faced discrimination and harassment in Delhi that had left an indelible and humongous psychological and physical impact upon them. The Bezbaruah Committee had made drastic recommendations to be incorporated in the Indian Penal Code (IPC), 1860 to address this multi-dimensional problem of racial violence as under:
- Legal Assistance Facilities: A panel of lawyers consisting of 50% women lawyers from North-East India for legal assistance such as Legal Awareness Training for representatives and vulnerable areas of North-East Indians.
- Strengthening of Law Enforcement Agencies: Law enforcement agencies should be sensitized and trained including police personnel and minimizing the delays and quality of investigation, recruiting sufficient number of SC/ST/Minorities as police personnel from North-East India.
- Special Police Initiative: The Fast Track Courts (FTCs) must be established in India to attend racial and hate crimes. North-East Special Police Unit should have the power of a Police Station and Special Police Squad supervised by the North East Special Police Unit should be created and a Special Helpline No. 1093 for youths from North-East must be established and synchronized with PCR 100 number and Data bank of all crimes against the people from North-East India.
- Educating People about North-East India: The People of India and posterity must be educated about the history and culture of North-East India by introducing appropriate writings in the text books and NCERT should introduce certain aspects of the “Northeast Ethos” into the curriculum.
- Creating Awareness: The Ministry of Information and Broadcast must give primacy to North-East in its media coverage. The resources of North-East must have as visible faces in the visual media. Media must be cautious while covering sensitive hate and racial issues. Moreover, tourism and indigenous games of North-East should be promoted while introducing new sport schemes for the region.
These recommendations were appreciated and accepted positively and an early enforcement thereof was assured by the Government of India. However, no implementation has seen the light of day even after two years. Hence, it is quintessential to implement these recommendations by enacting an Anti-racial Law to address the mounting derogatory and discriminatory attacks on people of different races in India. However, the Supreme Court of India desisted from passing any direction on the recommendation for amending the IPC by inserting two new provisions—Sections 153C and 509A–which was opposed by the Government of India on the ground that Sections 153A, 153B and 505(2) already exist as a part of the penal provision that address the situation of racial violence and hate crimes in India. Moreover, the Supreme Court took the cognizance of the suggestion put forward by the Government of India that the proposal was under examination and said “whether the law should be amended is for the Union government to decide in its considered assessment of the situation, the nature of the problem and the efficacy of existing provisions. A mandamus to legislate cannot be issued.” Thus, SC has made the following substantial directions in the case:
- To set up a three-member panel headed by a Joint Secretary-level officer with two other members to be nominated by the Union government for enhancing the sense of security and inclusion in the people of North-East India by addressing racial violence and hate crimes.
- The panel shall have powers to ensure strict action in incidents of racial discrimination, racial atrocities and racial violence and suggesting measures to curb such hate and racial crimes.
- To emplace the efficacious monitoring mechanism suggested by the Bezbaruah Committee in its report should be implemented and “should not like innumerable instances of its ilk, languish in dusty shelves of long forgotten archives”.
- The involvement of the law enforcement machinery is alone not sufficient to resolve the problem and stressed that mindsets have to be changed including in universities, colleges and educational institutions, places of work and in society.
The constitutional construction of constitutionalism on human rights instill a sense of pride among We, the People of India, but constitutionalization thereof is subjected to prejudices in every layer of state set-up, administrative apparatus and political paraphernalia of the country. Consequently, India has become an ivory tower of iniquitous social orders and Indian society stands stratified today on the ground of being a member of a particular social group or social origin or minority or religion or race or caste or political opinion and so on so forth. It is well-established fact that India is a land that cannot survive without the democracy of diversity and majesty of multi-culturalism. Since India has become a party to 1965 UN Convention on the Elimination of All Forms of Racial Discrimination in 1967.Therefore, time has, indeed, come to have an all-compassing Anti-Racial Law to curb the menace of growing racial violence, hate crimes and xenophobia.
Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights from the Aligarh Muslim University of India where he concentrated on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA [email protected], [email protected]
Tuesday, December 20, 2016
RECENT TOP PAPERS for all papers first announced in the last 60 days
21 Oct 2016 through 20 Dec 2016
Monday, November 21, 2016
The Younger Comparativists Committee of the American Society of Comparative Law (YCC) is pleased to invite submissions for the Phanor J. Eder LL.B./J.D. Prize in Comparative Law, in connection with its Sixth Annual Conference, to be held on April 28-29, 2017, at Koç University Law School in Istanbul, Turkey. The Phanor J. Eder Prize is named in honor of the first president of the American Society of Comparative Law.
Subject Matter and Eligibility
The Phanor J. Eder Prize will be awarded to the best comparative law paper submitted by an LL.B. or J.D. student; one or more honorable mentions will also be awarded. Papers will be accepted on any subject in public or private comparative law from students currently enrolled in a J.D. or LL.B. program, who will not yet have received their degree as of April 1, 2017.
Submissions from graduate students enrolled in master’s or doctoral programs are not eligible for this prize but may participate in a separate competition. Information is available at http://ascl.org/new-scholarship.
To submit an entry, students should send an email to [email protected] with the subject line: “Submission for Phanor J. Eder Prize.”
The email should state each author’s name and law school contact information, the title of the paper, and a certification that each author is an LL.B. or J.D. student satisfying the criteria set out above. The paper should be attached to this email in Microsoft Word or PDF format. Papers must be no more than 15,000 words (excluding footnotes). Submissions should reflect original research that will not yet have been published by the time of the conference, although it may have been accepted for publication.
The deadline for submission is January 16, 2017.
Scholars may make only one submission. Co-authored submissions will be accepted, provided that all authors satisfy the eligibility criteria and provide a certification to that effect.
Selection & Notification Process
The winning author(s) will be invited to present their paper at the YCC’s Annual Conference. The winner(s) will receive a modest stipend furnished by LexisNexis to help defray the costs of attendance. There is no registration fee, but winners will be responsible for securing their own funding for travel, lodging, and other incidental expenses beyond the prize stipend. The author(s) of the winning submission and any honorable mention recipients will be notified as soon as possible, and no later than February 13, 2017.
The YCC gratefully acknowledges the support of Koç University Law School and LexisNexis. If you have access to Lexis Advance®, research here.
The Phanor J. Eder Prize is administered by the YCC’s Affiliates Advisory Group, http://ascl.org/youngercomparativists/.
Please direct any questions to Patrick Yingling, Chair of the Affiliates Advisory Group, by email at [email protected].
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 protected] 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). [email protected]
* * *
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: