Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.

Friday, May 14, 2021

Comparative law papers examine fin reg, human rights, environment, labor, piracy, sovereignty, and more

Image by Gordon Johnson via Pixabay
Lately, I've been part of interviewing faculty candidates.  In that awkward part of the interview when the interviewee gets to ask questions, and the interviewee really wants to know, "What are you going to pay me?, because we could put an end to this charade right now if you're not serious," but doesn't ask that for fear she will look like it's only about the money, and really, why fear that? would you work for free? I wouldn't; there's a word for that, but the interviewee asks instead some dopey question to make the interviewer feel good, along the lines, "How can it be that you are so fabulous?," the subtext of which is not, but should be, "you, who really doesn't come off as bright or spirited enough to have pulled off fabulous," I'm wearing a hoodie after all, even if we are on Zoom, an interviewee recently asked me, "What do you like most about your job?"

Well, you asked, so I answer:  I never tire of seeing the ingenuity, inventiveness, and range of interests and life experience that law students bring to the table.  And a seminar as wide-ranging as Comparative Law gives the most ingenious and inventive a chance to shine.  This spring it's been my privilege to be informed, educated, and thought-provoked by a range of papers, and I am eager to share here a selection of abstracts, with authors' permission.  These students have outdone themselves in a challenging course, despite an ogre of a professor and limited access to resources during the pandemic.  Filled with (I hope, authentic) pride, I congratulate each and every one.

Laura Z. Copland, Understanding Human Trafficking: A Comparative Analysis of the Prosecution, Protection, and Prevention Laws in the United States and Honduras.  Human trafficking is a high-profile global issue, generating billions of dollars at the expense of millions of victims. Trafficking occurs to minors and adults in urban and rural communities. Victims have diverse socioeconomic backgrounds, varied levels of education, and can be documented or undocumented. Traffickers target victims using tailored recruitment methods they find effective in compelling individuals to fall into exploitation. In recent years, both the United States and Honduras have attempted to provide legal redress to the lack of focus placed upon the effects of human trafficking in legal scholarship. Anti-human trafficking legislation in these jurisdictions has differed in their specific approaches. Still, both have sought to implement prosecutorial guidelines to support the execution of the three main pillars of the fight against human trafficking. These three pillars are prosecution, protection, and prevention.  This note compares the similarities and differences in the attainment of the three pillars by both jurisdictions. Moreover, this note illustrates that despite trafficking’s tremendous impact, most people in positions of authority in both the United States and Honduras still need to learn about what human trafficking is, how to identify it, and how to combat it effectively.

Dolapo D. Emmanuel, The Inadequacy of the Insanity Defense in the United States and England.  According to Our World Data, as of 2018, nearly one billion individuals globally suffer from a mental health condition. Conversely, media portrayals of mental health conditions are both comparatively rare and largely inaccurate. Though insanity is a legal concept rather than a clinical condition, the preceding statement applies. Dramatizations of legal insanity have both obfuscated and marginalized the concept such that even individuals with academic or professional legal footing are confused about its place in criminal law. This confusion in turn fosters perceptions that may not be accurate. One of the most popular claims about the insanity defense is that it is a powerful tool criminal defendants employ to escape the legal consequences of their criminal conduct. To determine the extent of this alleged power, this paper aims to discern the adequacy of the insanity defense in the United States and England based on three factors: the congruency between the medical and legal perspective of mental illness, the utility of required expert testimony, and the stability of the defense’s place in criminal law. As such, it seems, despite the facts that there has been more evolution in the insanity defense’s standard in the United States, and that the standard is more difficult to satisfy in England, the insanity defense is more effective in England than it is in the United States. However, this paper identifies continuing inadequacies in both countries.

Sydney Anne Goldstein, The Force of Discipline: Laws of Good Order and Discipline of the Armed Forces of the United States and the Russian Federation.  From the primordial beginnings of combat to the ongoing conflicts in the Middle East, factions of humanity continue to assemble and take up arms to defend their way of being or vindicate their honor. Of course, there is strength in numbers along with the breadth and depth of their capabilities, but the real magnitude of military power comes from the discipline and conduct of those serving. Out of the countries currently grasping for global influence, the United States and the Russian Federation have climbed to the highest echelons of military power on the international stage. But with this elevated stature comes the pressure to maintain diplomacy coupled with the indelible friction of conflict.  In this paper, I survey the historical development of military jurisprudence of the United States and Russia to compare their legal institutions' impact on military power.

Richard Grace, The Modern Myth of the Efficient Market Hypothesis. The turn of the century wave of innovative technology companies, colloquially “FAANG” (Facebook, Apple, Amazon, Netflix, and Google), set in motion a revolution of the global economy.  Trade is more efficient than at any point in human history, as are the global financial markets.  Technology has expanded the reach of the instrumentalities of global finance to previously incomprehensible levels, allowing anyone with a smartphone to connect to stock, currency, bond, and commodities markets, and to execute trades anywhere you have a cell signal.  This realm, previously restricted to professional brokerages and traders, has been opened to the everyday individuals.  These individuals have come to be known as “retail,” or non-professional investors.  In response to these changing market conditions, large institutional brokerages have begun to market to retail investors, and numerous smaller brokerages have been formed with the sole purpose of providing the “little guy” access to the world’s markets.  The school of minnows can now play in uncharted territory, in the deep end alongside the whales.  This article aims to explore the impacts of the expanding role of retail investors on the global financial market.  Unsurprisingly, the changing market has resulted in many changes in the law.  The focal points of interest will be the responses in the law to the surge in retail trading in the United States and the United Kingdom.  As both jurisdictions have operated under the same common law tradition, the comparative value of juxtaposition of the present responses should provide useful comparisons as to the efficacy of certain laws, rules, and regulations passed to precipitate issues perceived by the global market.  I will first consider the frameworks under which retail investors operate; the regulations and laws that make up the rules of the game.  These rules include the "Pattern Day Trader Rule," and the trading of security derivatives in the form of option contracts.  Second, I will evaluate changes in monetization of retail trading at the brokerage level, most notably, the "Payment for Order Flow" system, originally devised by the infamous Bernie Madoff.  The financial market is inherently global, and therefore, changes in the law and in regulations within the United States impact all retail investors, regardless of their country of origin.  The result of this global system is that a routine practice in the U.S. markets may be completely prohibited within the U.K.’s, and vice versa; the same securities are being traded with two different sets of rules governing the transactions.

Brooke Loneker, Designer or Dupe? Assessing the Development of the United States: A Comparative Analysis Between Single-Use Plastic Recycling Laws Established in the United States and PerúIn what millennials might describe as a “Freaky Friday” scenario, this paper explores the notion of a "first world" country following in the steps of a "third world" country’s national legislation banning single-use plastics. In December of 2018, the nation of Perú passed and quickly enforced Law No. 30884, speaking directly to the prohibition of unnecessary or non-recyclable single-use plastics, which, under the civil law system, made the law applicable to all provinces, regions, and the Province of Lima. The United States, in contrast, with a federal legal system, does not have a national legislation that regards single-use plastics. California, a leading state among the United States in environmental regulation, has passed state laws regarding single-use plastic bans. This paper compares Perú’s Law No. 30884 and California’s Senate Bill No. 54, as amended in 2020. This paper focuses on the cost of enacting this legislation, the revenue opportunities provided through enacting this legislation, and the similarities of Perú's and California’s laws. In understanding these comparisons, this paper argues that implementing a structure that is successful in a country such as Perú would be cost efficient, promising to the state/federal budget, and would promote the health and general welfare of the U.S. population.

Ryan Manning, Counter-Piracy: A Comparative Analysis on Two Multinational Organizations’ Fight Against Piracy.  As piracy spiked around the horn of Africa, several organizations and countries sought to combat it. Although a prominent actor in counter-piracy efforts, NATO was not the only organization making strides to deter this maritime threat. Although initially reluctant, member states of the Shanghai Cooperation Organization (SCO), specifically China, made efforts to alleviate a dangerous situation. By addressing two different responses to the threat of pirates surrounding the horn of Africa, this paper compares NATO’s anti-piracy operations with China’s through the SCO. The paper first introduces what drove the pirates to start hijacking merchant vessels and the evolution of their tactics, causing them to become a threat to maritime security. Following that, NATO is analyzed, describing how it became involved in counter-piracy; then, the SCO’s lack of response as an alliance and China’s efforts to protect Chinese vessels from hijackings. Last, the missions of NATO and the SCO are analyzed. NATO’s integration of outside forces and cooperation has proved to be a beneficial tactic in counter-piracy operations, and the SCO was reluctant to involve itself in the operations. Disagreements among member states of the SCO prevented organizational cooperation, in turn, causing China to handle the threats on imports and exports unilaterally. Whereas NATO had extensive maritime experience, China used counter-piracy operations to develop its capabilities and provide support for vessels not of Chinese origin. Further, where NATO freely cooperated with organizations and states outside of its members, China was initially reluctant to provide support and struggled to allow other members to work alongside.  Yet as declines in pirate attacks have been related to multinational cooperation, China’s participation with NATO and other operations has become a crucial contribution to further deterrence of piracy.

Brett Mueller, Animal DiplomacyIn a time when common ground between the United States and China seems to be eroding, one area of shared goals could provide fertile ground to help ease tension: wildlife. While both countries seek to preserve naturally occurring creatures, historic practices and differing viewpoints on just how to achieve that goal have left the picture of wildlife protection looking vastly different in each. While the approaches may be different, different is not synonymous with ineffectual (or wrong), and it is important to understand the underlying complexities that exist in each society in order to chart a reasonable path forward. Of course, the relationship between natural creatures and mankind has developed over many centuries, and will continue its indefinite transformation as time goes on. Instead of casting judgment from afar, the United States and China would be wise to learn from each other’s successes and failures. Regardless of other sources of disagreement, when it comes to wildlife preservation it is time for the two world superpowers to put on a unified front to set a strong example for the rest of the world.

Sara O'Brien, A Comparative View of Irish and Israel Citizenship Laws as Products of Settler-ColonialismIrish and Israeli citizenship laws are compared by activists because of their seeming similarity; they both provide citizenship to those born abroad under certain conditions or circumstances. However, their approaches to citizenship are not as similar as they seem. Each nation has imposed certain restrictions on claiming citizenship, and as we see, those restrictions and limitations effectuate particular purposes.  The purpose of this paper is to explore how the laws differ, and how they work to accomplish particular political goals. The respective approaches appear to be motivated either in moving beyond a settler-colonial regime, as in Ireland, or continuing one, as in Israel. By examining the Israeli Citizenship Act (1952) and Law of Return closely, a stark difference in how people of different religion are treated becomes clear. In practice, the laws make it easier for foreign nationals of the Jewish faith to immigrate to Israel, while making it difficult for Palestinians to gain citizenship as both a practical and political manner. In Ireland, the post-settler-colonial citizenship scheme is visible in the relative religious and ethnic neutrality of the laws. Ireland allows for descendent citizenship provided the applicant meets a handful of requirements, and acquisition is structured in a manner that does not consider religion, race, or national origin, and does so explicitly to make Ireland more inclusive after the Good Friday Agreement was ratified.  Together, they provide examples of how active settler-colonialism can manifest in citizenship laws, as well as how citizenship laws can be used to uphold the ideals of post-colonial governments.

Spencer K. Schneider, The Necessary Evil of Environmental Federalism in the U.S. and Brazil.  Brazil and the United States are respectively the fifth and third largest countries on earth. As a result, both countries are composed of many diverse environments, from forests to waterways, and these environments require careful management and conservation. But both countries suffer from inconsistent environmental regulation that is primarily due to the frameworks of federalism that shape the relationships among each country’s national, state, and local governments. These frameworks of shared power are crucial to effective environmental regulation and protection, but, these frameworks are also at the root of some of environmental policy’s largest problems today. Understanding how federalism functions in environmental policy is crucial to solving some of the biggest problems in environmental regulation that exist today.

Ricardo J. Serrano R., Jíbaro Nation: Las Crónicas de la No Incorporación (Jíbaro Nation: The Chronicles of Non-incorporation).  Puerto Rico en los últimos quinientos años ha tenido una compleja existencia colonial que todavía se ve plasmada en el presente. En este estudio investigamos más profundamente el efecto de la Carta Autonómica en el estatus colonial de Puerto Rico bajo España, sus limitaciones, y existencia de una noción de soberanía introducida por los líderes nacionalistas de Puerto Rico. También, luego del 1898 examinamos la integración de Puerto Rico como territorio no incorporado a los Estados Unidos y como este proceso de integración ha afectado a Puerto Rico y su estatus colonial. Al mismo tiempo, se hace un contraste entre el Puerto Rico bajo la Carta Autonómica de 1897 y el Puerto rico bajo los Casos Insulares y el Acta Foraker para comparar los derechos legitimados por cada sistema. Por último, se establece un esquema que comprende el trato de Puerto Rico desde el 1898 hasta la ratificación de la asamblea constituyente de 1951.  (Author's translation: Puerto Rico in the last five hundred years has had a complex colonial existence that is still embodied in the present. In this study we investigate more deeply the effect of the autonomic charter on Puerto Rico's colonial status under Spain, its limitations, and the existence of a notion of sovereignty introduced by Puerto Rico's nationalist leaders. Also, we examine the integration of Puerto Rico, after 1898, as a territory not incorporated into the United States and how this non-integration has affected Puerto Rico and its colonial status. At the same time, a contrast is made between Puerto Rico under the 1897 Autonomy Charter and under the Insular Cases and the Foraker Act to compare the rights legitimized by each system.  Finally, a scheme is established comprising Puerto Rico’s treatment from 1898 until the ratification of the 1951 Constituent Assembly.)

Matthew R. Stevens, Collectivism, Individualism, and Their Respective Costs of Human Life During the Covid-19 Pandemic.  On the final day of 2019, December 31, the World Health Organization discovered a media statement from the Wuhan Municipal Health Commission describing new cases of “viral pneumonia” in Wuhan, People’s Republic of China. One year later, this viral pneumonia would claim the lives of two million souls. While almost every country and human on the planet has experienced the COVID-19 Pandemic in one way or another, disparate impacts have arisen throughout the globe. One curiosity inducing dichotomy is that of South Korean and the United States, suffering 1,700 deaths and 551,000 deaths, respectively. This paper dives into a comparative study of the COVID-19 responses of South Korea and the United States through the scope of collectivism and individualism. This paper explores whether the respective responses have direct ties to the country’s individualistic or collectivist culture, and if any connection can be drawn to the relative success of one cultural response over the other.

Jhoanna Sylio, Reexamining the Seasonal Agricultural Workers Program (SAWP) and Possible Improvements Based on the Administration of the H-2A Temporary Agricultural Workers ProgramTemporary agricultural foreign workers are admitted to the United States and Canada through guest worker programs to perform low-skill seasonal or temporary agricultural labor.  Foreign workers fill jobs that farmers are otherwise unable to fill with a local workforce despite availability of jobs and requirement of very little formal education. In the United States, employers are able to bring in foreign workers from 80 countries to fill temporary agricultural work under the H-2A program.  In Canada, employers are able to source seasonal workers from Mexico and 11 participating Caribbean countries under the Seasonal Agricultural Worker Program (“SAWP”). The paper examines the legal framework of the H-2A program in the United States and the administration of the H-2A program in North Carolina, specifically. This examination serves as a basis of comparison with the administration of SAWP in Canada, focusing on Ontario. The paper overviews the guest worker programs in the American and Canadian contexts, and  the important role migrant agricultural workers play in ensuring food security in these labor-destination countries. The paper concludes by identifying measures that could be adopted in Ontario to effectively increase protections and  improve conditions experienced by migrant agricultural workers under the SAWP.

Thomas D. Aaron Wazlavek, The Pond Separates Cultures But Not Values: A Comparative Look At the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment.  The differences and similarities of the United States common law concept of “right to work” and the modern development in France of the right to withdraw labor, after the “yellow vest” movement in 2018, demonstrate a parallel diminution of workers’ rights. These changes are motivated by the same values inherent within capitalism that are superimposed through the law. This article analyzes the social and legal context in both countries that demonstrates that the superimposition of these values through law is a continuing modern western trend. The key difference is that, while the French model is designed to decrease the pressure for strike actions by workers, it also serves as a protection to workers, as compared with the American model, which largely exists merely as a tool to remove workplace protections by substantially altering the terms and conditions of employment. Further, this article demonstrates that these concepts are both divergent and convergent in terms of core shared values and the peripheral aspect of laws setting cultural norms.  This article then concludes through comparative analysis that while the French right to withdraw labor is a product of legislative supremacy, and the American view within the common law is that at-will employment is the standard, the French model is a product of generations of social negotiations. The American model is a product of the easily swayed influences within the common law that allow a new legal theory with little to no precedential value at the time of its proposal to be adopted in sweeping fashion with very little civil discourse.

National and U.S. state flags courtesy of Flagpedia.net.  Puerto Rico historical flags from Welcome to Puerto Rico.  Ontario flag from Britannica.com.  NATO and SCO seals from Wikimedia Commons.

No comments:

Post a Comment