Suchergebnisse

The Swiss Institute of Comparative Law seated at Lausanne was established by the federal statute of October 6, 1978. The Institute is envisioned as a center for the "documentation of and research into comparative, foreign, and international law." According to the statute and the implementing decree of December 19, 1979, the Institute serves the following purposes: (1) to supply federal agencies and the federal administration with material and studies that may be needed for decisions concerning legislation and international treaties; (2) to contribute towards international efforts at the harmonization and unification of law; (3) to provide information and expert opinions to courts, administrative agencies, attorneys, and other interested parties; [and] (4) to pursue its own scholarly research studies, to support and coordinate studies at the Swiss universities and to offer to scholars and researchers an adequate research center in Switzerland. . Two principles resulting from the purposes of the Institute affect the character of the library. First, to satisfy the practical and scholarly orientation of the Institute, the collection is designed to facilitate research into the present state of law and its future development. Thus, material on legal history of antiquity, the Middle Ages, and, with rare exceptions, Roman or canon law will not be collected. More recent legal history, however, will be placed in the collection if such material is useful in the application or scientific treatment of modern law.

This Article asserts that during the twentieth century, American law has predominantly structured its relationship to foreign legal experience through a set of ideas and practices known as "law and development," which is irredeemably antithetical to the practice of comparative law. Centrally, law and development is built on the assumption that American law can be exported abroad to catalyze foreign legal development. The dismal record of such efforts has remained paradoxically popular while the field remains locked in repeating cycles of failure and optimism. This Article demonstrates that the history of law and development's failures is far older than has been traditionally recognized, and dates back to the turn of the twentieth century. In this era, foreign reform became a key part of the professional image of the modern American lawyer. At the same time, the origins of law and development were intimately tied to the decline of comparative law in American legal culture. This history reveals that the paradox of law and development's contemporary popularity can only be understood by recognizing the cultural politics that these developments embedded in the American legal community. The troubling legacy of this widely entrenched view of America as solely an exporter of legal knowledge presents pressing liabilities for American law, both internationally and domestically, on the competitive terrain of the twenty-first century. This Article concludes that in order to address these liabilities, America should categorically abandon law and development and should fundamentally reorient its relationship to foreign legal experience through a self-interested practice of comparative law. As exemplified in the debate over judicial citation of foreign precedents, this shift will require basic changes in how American legislative and administrative bodies relate to foreign law, as well as the place of comparative law in American law schools. Such a reorientation will enable America to strategically perceive foreign legal ...

Not only have the Miranda warnings become a recognized procedure in police interrogations in the United States, but they have been adopted or strengthened over the years in formerly inquisitorial countries like Germany, Italy, Spain and most recently France, and are now recognized as having constitutional status. This article discusses the protections afforded to criminal suspects and defendants overseas when faced with interrogation by police, prosecutors, investigating magistrates or judges of the investigation. It compares the admonitions given to such suspects with those provided in the Miranda decision and discusses their constitutional, or statutory status. It further discusses when such admonitions must be given, to what extent the police or other officials may re-admonish after the right to silence or counsel has been invoked, and whether statements taken in violation of such admonitions or the fruits thereof may be used in court, or for the purpose of conducting further investigations or prosecuting third parties. This article also assesses what we can learn from a comparison of U.S. law with that of other democratic countries with systems derived from the inquisitorial model. The comparison focuses primarily on England, France, Germany, Italy, Russia, and Spain.

What does today's Administrative Law course give your students that you might not be aware of and might be helped by knowing? That, as I understand it, is the question I am to answer. But we may also want to think about the overall shape of the curriculum: it may be useful to ask about fundamental issues our students may not be aware of, that may not be dealt with elsewhere in the law school curriculum. I'll spend most of my time on the question I've been asked to address, but I hope you will accept a few sentences on this second question. For administrative lawyers, that probable gap remains the one Harold Lasswell and Myres MacDougal suggested long ago, that contemporary law studies should include explicit instruction in the skills of public policy analysis – in particular, how to evaluate the need for and probable effectiveness of regulation. Administrative Law is the hidden comparative law course of the public law and adjectival law curriculum. In my judgment, that is its main contribution to your students' appreciation for your own subjects. Its students come to grips again and again with problems whose contrasts with those of the standard court-centered curriculum can illuminate their other courses. The common thread here is in the rather pragmatic adjustments legislatures and courts have made to the exigencies of the administrative state, in the face of legal theories developed in the simpler theoretical world of one-function institutions and individual rights. Ideology and theory have rarely prevailed in competition with function and necessity. Although the situation may be changing, as we shall have to discuss, Administrative Law repeatedly confronts its students with doctrinal differences driven by "the necessity of the case," which can illuminate standard courses as well as our own. I'm going to give a few examples, proceeding in alphabetical order through the curriculum and stressing those developments that are more recent in origin.

This Article discusses the development of environmental regulation and preservation in Taiwan in light of United States environmental law. The Article begins with a discussion of how few measures have been enacted to protect the Taiwanese environment. It then illuminates some of the problems with the Taiwanese environmental regulations that do exist. According to the author, some of these problems include: ambiguous and conflicting goals enunciated in the legislation; political pressures on the authorities influencing environmental policies; poor enforcement mechanisms; a legislative bias in favor of regulating new sources of pollution and against enforcing regulations in the case of old sources; and little or no litigation over environmental laws. The author next points out the weaknesses in Taiwan's policy of selective enforcement and its ineffective use of economic instruments to control pollution. The author concludes this Article with some suggestions of how Taiwan could improve its environmental regulation efforts.

I admit that I am an addict, a compulsive user of libraries and especially law libraries. As a comparative lawyer I need to investigate foreign law, which for me is the law of jurisdictions outside the United States. Since I believe the social and cultural context in which law operates is important to its understanding, I must leave the relative comfort of United States libraries and venture abroad to learn about the features of legal systems not adequately described in books. Beyond common law countries, as the IALL 20th Annual Course illustrates, the language of law is something other than English: yet another hill to climb to understand foreign law. For most of you, United States law is foreign law, which is the other side of the same issue. In addition, public international law lawyers could benefit from the comparative approach. This is particularly true for those from the Anglo-American world who rely almost exclusively on English language materials in their research. This narrow perspective undercuts the fundamental premise of universality behind a truly international legal system.

In contemporary debates over copyright, the figure of the author is too-often absent. As a result, these discussions tend to lose sight of copyright's role in fostering creativity. I believe that refocusing discussion on authors – the constitutional subjects of copyright – should restore a proper perspective on copyright law, as a system designed to advance the public goal of expanding knowledge, by means of stimulating the efforts and imaginations of private creative actors. Copyright cannot be understood merely as a grudgingly tolerated way-station on the road to the public domain. Nor does a view of copyright as a necessary incentive to invest in dissemination of copy-vulnerable productions adequately account for the nature and scope of legal protections. Much of copyright law in the US and abroad makes sense only if one recognizes the centrality of the author, the human creator of the work. Because copyright arises out of the act of creating a work, authors have moral claims that neither corporate intermediaries nor consumer end-users can (straightfacedly) assert. This makes it all the important to attempt to discern just what authorship means in today's copyright systems. This Article endeavors to explore the concept of authorship in both common law and civil law jurisdictions. It considers legislative, judicial and secondary authorities in the US, the UK, Canada and Australia, as well as in the civil law countries of France, Belgium and the Netherlands. The legal systems here examined appear to agree that an author is a human being who exercises subjective judgment in composing the work and who controls its execution. But that description may neither fully capture nor exhaust the category of "authors." Contending additional or alternative authorial characteristics range from sweat of the ordinary brow, to highly skilled labor, to intent to be a creative author, to investment. The under- or over-inclusiveness of the subjective judgment criterion depends on which of these other characteristics national laws credit. Despite these variations, I nonetheless conclude that in copyright law, an author is (or should be) a human creator who, notwithstanding the constraints of her task, succeeds in exercising minimal personal autonomy in her fashioning of the work. Because, and to the extent that, she molds the work to her vision (be it even a myopic one), she is entitled not only to recognition and payment, but to exert some artistic control over it. If copyright laws do not derive their authority from human creativity, but instead seek merely to compensate investment, then the scope of protection should be rethought and perhaps reduced.

The legal systems of the Federal Republic and Japan have much in common. The basic institutions and concepts of German civil, criminal, and administrative law provided the principal models for Japan's legal reforms during the late nineteenth and early twentieth centuries. Contemporary legislation and doctrinal changes in the Federal Republic also continue to influence Japanese legal developments. Despite the American origins of Japanese antitrust legislation, which was drafted by Americans and imposed during the Occupation on a less than enthusiastic Japanese government, the influence of German law and practice on Japanese antitrust law, at least since 1953, has been profound. The 1952 government draft of the German GWB, for example, provided the basis for the most important changes in the Japanese Antimonopoly and Fair Trade Law in 1953: the inclusion of recession (fukyō) and rationalization (gōrika) cartels. Perhaps more important, the Japanese statute is enforced within procedural contexts—both administrative and criminal—patterned after German law. As a result, today Japanese antitrust law can be understood accurately only when read in terms of German rather than American practice.

"Little did we suspect," remarked Nelson Mandela, "that our own people, when they get that chance, would be as corrupt as the apartheid regime. That is one of the things that has really hurt us." Africa is the only continent that has grown poorer over the last three decades. The causes of Africa's existing predicaments are complete; however, there is no argument that deep-rooted corruption is one of the most serious contemporary developmental challenges facing the continent. Mr. Adama Dieng, who the Secretary General of the Organization of African Unity (OAU), the precursor of the African Union (AU), entrusted with the task of studying the legal, political, and economic implications of corruption in Africa, stated in his 2004 report that "corruption and impunity are antithetical to the enjoyment of economic, social and cultural rights and the enemy of the principle of good governance." Cognizant of this fact, the AU adopted the Convention on Preventing and Combating Corruption (AU Corruption Convention). Foremost among its objectives is promoting development through renting, detecting, and punishing acts of corruption. By no means unique, the AU Corruption Convention is the latest in a series of international efforts to combat corruption through international law. Although the very adoption and entry into force of the AU Corruption Convention is a significant step, its real impact will depend on several crucial considerations, including clarity of the substantive obligations imposed, conformity of the newly adopted norms with existing legal and human rights obligations, proper municipal implementation of these norms, good governance, proper monitoring, and robust international enforcement. This article makes a timely effort to evaluate the recently adopted AU Corruption Convention in light of existing international legal norms relating to corruption, which will inevitably inform and shape its future progress. More particularly, this article endeavors to characterize the AU Corruption Convention's approach to ...