Showing posts with label New Zealand. Show all posts
Showing posts with label New Zealand. Show all posts

Monday, December 23, 2019

Comparative law papers span globe, round out 2019

Comparative Law is so rewarding to teach that I'm probably overcompensated to do it.*  The inherently diverse nature of the course content, co-instructor Dean Peltz-Steele and I find, inspires students to creativity in their work in a way that much of law school never manages to do. Moreover, I think, that opportunity to be creative is why students respond favorably to the class, an oasis in the monotonous sea of bar courses.  We learn so much from their projects in Comparative Law, which adds in turn to the rewards of teaching the class.

At risk of pride, I wish to share, with students' permission, the impressive range of projects generated in our class this semester in 2019.  The following excerpts are of my construction, so any roughness in the editing is my fault.  No need to call for reference checks on any of these students; every one has our informed endorsement.  Let the hiring begin!

Markus Aloyan (Instagram), Executive Powers: Rebirth of a Soviet State [Armenia and the United States]. Therefore, the current political climate and constitutional crises in Armenia contain a historically driven, Soviet-Communist basis and more modernly developed Russian influence that came to fruition in the young Republic's 2015 Constitutional Amendments. The Russian-influenced reforms will be compared to the executive powers vested by the American Constitution, and analyzed for their causes and effects on the region. [Footnotes omitted.]

Tyler Hicks, England and United States Fishing and Hunting LawsThe purpose of this paper is to compare the very different histories of England and the United States for wildlife management, and then show how even though these countries have different systems, their overall goal to protect and further wildlife is generally the same in effect. England and Massachusetts generally face the same issues when it comes to enforcement of their laws as well. Both countries value the ability to be able to hunt and fish but understand that they have a duty to hunt and fish both ethically and humanely. In particular, I will compare the fishing and hunting laws of England and the laws of the United States, including Massachusetts.

William McGuire, Prostitution and Human Trafficking [Sweden, UK, US].  Prostitution and human trafficking are two intertwined issues that have prevailed throughout the course of modern history, and an analysis of the different approaches taken by different societies articulates a quadripartite view of prostitution as a whole.  The four views are the moralizing view, normalizing view, the patheticizing view and the victimization view.   These four views have produced three categories of legal systems, the absolute or partial criminalization of prostitution, the regulation and legitimization of prostitution, and the abolition of prostitution.... In this paper, I will articulate the three different legal systems through example.  I will use the Swedish Model to show how the partial criminalization of prostitution has affected Swedish society as a whole.  I will use the United States to show the American model of abolition of prostitution, with the exception of the state of Nevada.  Finally, I will use The Netherlands to show the regulation of prostitution.  I will then discuss the social pressures that led to the adoption of the legal system used in each country, specifically, whether the impetus was to combat human trafficking or not.  Finally, I will conclude by discussing whether there is convergence or divergence on a regional and global level.

Daniel Picketts, [Civil Rights in United States and Contemporary Afghanistan].  The evolution of civil rights has been driven by changing societal sentiments and ultimately cemented in different civilizations through changes in their laws. Currently in the United States, civil rights are the buzzword of the day and the public’s changing sentiment is demanding attention from the nations law makers. The current climate and inclusion of different classes that make up the civil rights of the United States has taken a winding path that has led it away from the oppressive, segregate founding, to the arguable progressive, inclusive current day.... Comparing two vastly different countries with glaring differences becomes productive when the factors that have effected changes in civil rights, while accounting for any differences, cultural or otherwise, are similar. What this comparison sets out to accomplish is to compare two different countries: the United States, and Afghanistan. The similarities in civil rights are few and far between. Instead what will be compared are the events in the two countries that are somewhat similar and the outcomes that resulted in the respective countries....


Christine Powers, A Comparison of the Child Custody Standards in the United States, New Zealand, and Ireland.  This paper is an examination and discussion of the different child custody definitions and terminologies and the standard deployed by the judicial system when making a child custody determination. The paper will discuss the different factors that a judge may or must consider when making a child custody arrangement. Further, the article will discuss whether or not there is a trend towards a unified standard and whether unification of the standard is possible.







Kiersten Reider, I Do But I Don't Want To: A Comparative Analysis of the Criminal Marital Rape Laws of the United States and India.  The aim of this paper is to provide a comprehensive analysis of the criminal rape laws of the United States and India, with an emphasis on marital rape. I will spend time discussing each country individually before drawing a comparison between the two. First, I will discuss the United States, briefly touching on the common law history of marriage, and criminal rape laws at the state and federal level. I will then discuss India, touching on its hybrid legal system, and the history of marriage and criminal rape laws at the state and federal level. Last, I will discuss the similarities and differences between the two systems.

Christina Suh, Comparing the Law to Court-Mandated Divorce Parenting Class Between the United States and South Korea. This paper compares legislative and judicial history in implementation of court-mandated parenting classes during divorce proceedings in the United States and South Korea.  The discussion demonstrates how evolution of social movements in each country changed its customary laws in the area of family law jurisprudence.  In exploring the multiple related causes behind the development of the mandated parenting class, parts of the paper will address how Korea’s high cultural context influenced its revision in laws to focus on the protection of minor children and promote gender equality.  Although there is a lack of strong studies that speaks to the direct effectiveness of the program in each country, the related research demonstrates the importance of educating parents about managing conflict and promoting the health and safety of children.  In conclusion, findings will show why changes in law that educate and decrease adverse child experience (ACE) is an approach that benefits society as a whole, in the long term....

Brittany Wescott, Juvenile Justice Converges on Principles Leading to the International Harmonization of the Juvenile Justice System [South Africa, US].  This paper explores the similarities and differences between two countries, South Africa and the United States, specifically Massachusetts, in relation to the international principles governing each respective juvenile justice system. This paper explains how both the South African system and the U.S. system developed, illustrating the various principles each holds dear. In addition, this paper looks specifically at the value behind setting a minimum age of criminal responsibility, the crimes juveniles can be charged with, the limitations on sentencing, and the handling of juveniles in and out of the court room. Regardless of ratifying the Convention on the Rights of the Child, both countries have made significant progress toward embodying the principles of the international community.

Kyle Zacharewicz, Wish You Were Here: A Comparative Analysis of U.S. and Canadian Refugee Law and PolicyImmigration and refugee policy of various nations has started to move in the trend of “locking down” the border. It has been seen, both with the increase in numbers of refugees and the occurrence of several populist movements across the globe gaining real traction, that many countries have begun to implement a “Nation First” mentality toward the growing threat of “those people,” the nomadic wanderers by happenstance of displacement and inability to return home.... While the exchange of ideas on the treatment of and allowances for Refugees in the greater European community are robust and important, this paper will instead take a deep dive into the myths of how two different countries, the only two neighbors on the continent of North America, deal with and treat refugees and asylum seekers in order to discover how truly they hold up currently.... I find it effective to analyze these two countries as they are connected by their common law systems, participation in international treaty-making, similar legal structure in immigration and refugee procedure, and a border.... It is easy to see how the policy of one can affect the other, and my goal after explaining the reality of how these systems operate today is to show how the United States has clamped down on its immigration policy, and why Canada largely has the potential makings of a similar populist movement toward “locking down” the border.

Congratulations, Comparative Law students!


*Hyperbole.  I'm not overcompensated at UMass, despite an inexplicable vote by the tenured faculty to disallow anyone asking for a raise.  Compare Salary.com with MassLive database.  Nonetheless, I will remain grateful for the opportunity to have worked with and learned from my students.

Thursday, March 21, 2019

NZ prosecutions for sharing Christchurch vid would suppress news, free speech, but worse is empowerment of private censors

Timothy B. Lee at Ars Technica has reported on the enforcement of New Zealand's "objectionable" content law to threaten internet users with draconian criminal penalties for having shared video of the recent terrorist attack in Christchurch.

According to Lee's report, one "44-year-old owner of an insulation company with alleged neo-Nazi sympathies" is being held without bail on two counts of illicit publication, and, via 9News, an unnamed 18-year-old also has been charged. Conviction on one count of publication of objectionable content carries a prison term of up to 14 years. The video, 17 minutes in length, was taken by the perpetrator in Christchurch and live-streamed on Facebook. According to CNN, "online platforms scramble[d]" to scrub the video from the internet.

Hand-wringing over a decline in morality fueled by online media seems to be reaching a fever pitch. Just Tuesday, March 19, Jim Jefferies kicked off his show's season 3 by examining the short chain of YouTube recommendations that can lead a user from a well meaning laugh to white supremacist rhetoric.

But this problem is not new. We too quickly forget that the internet owes rapid growth in its early years to pornographic video, notwithstanding its social complications on both the production side and the consumption side.  In the violence and morbidity vein, Rotten.com was a controversial yet popular online destination from its inception in 1996.  Plenty of scholars have speculated aptly that the internet is more evidence than driver of vice as an enduring feature of the human condition.  That censorship will somehow save us from our demons might be a fundamental error of causal inference.

More than objectionable speech itself, our social problem is poor information literacy (something I talked about a couple of weeks ago at the Pi Sigma Alpha induction at SUNY Oswego; for my knowledge of the term, hat tip to my wife, Dean Peltz-Steele, a law librarian), which itself is connected to educational and economic opportunity.  A white supremacist spouting off on the internet is only dangerous insofar as people embrace the nonsense.  If people are well educated and well employed, the rhetoric of hate and blame has trouble taking root.

"Objectionable" content presents, then, nothing more than the classic Brandenburg v. Ohio (1969) free speech problem.  Clarence Brandenburg was a KKK leader speaking at a rally.  In reality, the rally was not well attended, but that was not a salient fact in the advent of the "incitement to imminent lawless action" test.  That test, as complemented by later refinement of "true threat" doctrine, appropriately circumscribes constitutionally protected free speech.  Barring exigency that justifies preventive state action—not unlike the way tort law punishes assault shy of battery without fretting over the lack of physical contact—the free speech fundamental principle is that the law may punish actions, but not mere words, or mere expression.

The NZ Films, Videos, and Publications Classification Act 1993, as amended, covers content that comprises more than mere speech, e.g., child sexual exploitation.  A category for depictions of "the infliction of serious physical harm" fairly takes in the Christchurch video in a way to which U.S. law is unfairly resistant.  What is missing, though, from the NZ law is a newsworthiness exception.  The law articulates factors in assessing content for its objectionable nature.  Factors include "any merit, value, or importance that the publication has in relation to literary, artistic, social, cultural, educational, scientific, or other matters," terms in fact derived from U.S. constitutional law.  But the objectionable-including provision is hard and clear, while the objectionable-excluding factors are soft and ambiguous.

I don't condone sharing a terrorist's self-serving video of violence and human suffering.  Jefferies aptly distinguished a legal compulsion not to share the video from what should be a person's moral capacity to distinguish right from wrong.

What is most troubling about the NZ criminal charges is not, however, the poor choices of some internet users, but the rush by the internet's corporate powers to scrub from the web something that is real and newsworthy.  Notwithstanding the direct threat of NZ state power to free speech, the online suppression of the Christchurch video points to a greater and more menacing problem in internet censorship.  What has changed since Rotten.com rampaged online is that today, the World Wide Web is less wild West and more engineered Westworld.  At some point in our future we will have to reckon with the power of corporate actors to let us see only what they decide is not "objectionable."

Monday, February 25, 2019

Beyond anthropomorphism: Research posits post-humanist animal rights

Tomorrow the UMass Law Review will ceremoniously launch its volume 14.  Included therein is a deep, thought-provoking work on animal rights and welfare by Barnaby McLaughlin, '19, himself a teacher in the English Department at Rhode Island College.  The paper, "A Conspiracy of Life: A Posthumanist Critique of Appoaches to Animal Rights in the Law," is available online from the law review.  I'm proud to say I was a reader on this project, though it was decidedly one of those I-got-more-than-I-gave scenarios.  I'll take my Ph.D now, please.  Here is the abstract.

Near the end of his life, Jacques Derrida, one of the most influential philosophers of the twentieth century, turned his attention from the traditional focus of philosophy, humans and humanity, to an emerging field of philosophical concern, animals. Interestingly, Derrida claimed in an address entitled The Animal That Therefore I Am that, 

since I began writing, in fact, I believe I have dedicated [my work] to the question of the living and of the living animal. For me that will always have been the most important and decisive question. I have addressed it a thousand times, either directly or obliquely, by means of readings of all the philosophers I have taken an interest in. . . .

Derrida’s insistence that the question of the animal has always been the focus of his work reflects an interesting turn in philosophy at the end of the twentieth century, where the primacy of the human was rightfully being challenged, and the lives of animals were being considered on their own terms. Increasingly, the shift in focus from the primacy of the human to a more thoughtful consideration of animals has moved outside of just philosophy into other academic fields. These developments have been reflected in the emerging interdisciplinary field of posthumanism. Posthumanism, inclusive of all disciplines, seeks to shed the legacy of liberal humanism and the primacy of the human and instead consider all the interests of those that the human shares the world with (including animals, plants, technology, et cetera). Curiously however, while posthumanism has had an impact in most disciplines, outside of a few scholars, it is absent in the legal field (both in academia and in practice). Where the status of animals in the law has been challenged, it has largely been done through arguments derived from the legacy of liberal humanism. The two most significant challenges to the status of animals in the law have been mounted by the Nonhuman Rights Project in the United States, and the Great Ape Project, which has primarily been successful in New Zealand and Spain. Both projects have sought to expand legal rights to hominids, though each has adopted different strategies. The Nonhuman Rights Project has sought to use arguments within existing legal paradigms to force the courts to recognize chimpanzees as “persons,” whereas the Great Ape project has intentionally avoided court (for fear of setting unfavorable precedents) and favored pressing change through legislation. Ultimately however, both projects are thoroughly rooted in liberal humanism and advance their arguments through proximity claims—the idea that certain animals, in these cases, apes, deserve legal consideration because of their similarity to humans.

This paper is an interdisciplinary comparative analysis of the Nonhuman Rights Project’s failures in the United States and the Great Ape Project’s success in New Zealand. The success of the legislative approach of the Great Ape Project demonstrates the need to approach these arguments outside of the courtroom to avoid hostile judges, philosophical legacies, and archaic precedents. However, the Great Ape Project does not go far enough in expanding the rights of other beings as it relies on emphasizing similarities with humans as the sole reason for extending rights, leaving other beings, even higher order mammals like dolphins, without inclusion— and a real possibility that any such inclusion would forever be cut off. Therefore, this paper proposes the need for a posthumanist foundation for pursuing the rights of other beings through legislative means.

Thursday, September 29, 2016

Guest post: Where is tort (anti)reform in politics now?

Alex Nee, a student in my Torts I class, posted to the class website links to Ralph Nader in Harper's (April 2016) and Michael Shammas's reaction at The Huffington Post (May 2016), reflecting on the latter in the context of our study of American tort law.  Alex's opinions are of course his own.  I think his revival of these pieces and his comments speak to something of the voter's frustration in this election cycle, as linked to questions about dysfunction in tort law.

When our class watched the special on New Zealand's lack of fault-based tort law [excerpt from Adrenalin Nation], I had mixed feelings. On the one hand, it would be nice to have a more efficient system in place to ensure damages were looked after in a timely manner and without the need for costly trials. On the other hand, lawsuits and trials serve as a deterrent to negligence and malpractice. So how can America balance the two?

Tort reform is something that is always being tossed around in political and legal circles. What is needed to accomplish efficiency, advocacy, and deterrence is something that can be debated. What Shammas, the author of The Huffington Post article, suggested, however, is that there is no debate that the tort system in America is broken.

Shammas suggested that the demand for reform comes from a number of factors including lobbyists, political polarization, the lack of a functioning jury system, and a number of "deforms" ranging all the way back to the 1960s. I am of the opinion, coming from a political science major, that a lot of these problems stem from a broken political system. Few people will debate that something is wrong with American politics; just look at whom we nominated for President.

The constant polarization of the parties and the greed for power and re-election (over the need for advocacy of constituents) forces politicians to act unreasonably. Rather than advocate, they want money and power. Jury trials take too long and are not viewed favorably by Big Money. If I ran a company that could be sued for negligence, I would want the "system" rigged (or at least very lenient) against plaintiffs so I would not have to pay damages easily. To that end I would donate and support candidates who oppose trials, juries, and reforms that might favor them. Like Nader, Shammas concluded that this position is not in the best interest of the American people.

Shammas cited Ralph Nader's article in Harper's about the lack of a functioning jury system in American tort law.  Juries were designed to democratize courts. Rather than a few elites deciding the fates of the laymen, the laymen themselves would decide the facts. The verdict would be skewed toward Big Money and elites if the jury were not present. This is why our Founders framed the jury right in the Seventh Amendment.

Shammas ended on a note that common law is lagging even farther behind than it should. In today's day and age, technology and information is changing on a daily basis. New tech comes out faster and faster. Last year's model is obsolete, time to upgrade. The common law cannot keep up with our fast-paced society looking for modern answers to law. This is another weakness perpetuated by the broken political system.

The Legislature is supposed to step in and assist where common law lags behind. But the inefficiency of Congress and the constant bickering of States results in a sub-par system of balancing common law. It seems that a majority of politicians would rather talk about how amazing they are and the sins of the other party than talk about how we can fix broken systems or update the laws to reflect society's standards for right and wrong.

Alex Nee has a B.A. in political science from Gordon College in Wenham, Massachusetts, and is a J.D. candidate at UMass Law School. He has worked most recently as a service associate for Mid-Cape Home Centers, a communications officer for the American Red Cross, a legal clerk for Cape Cod Media Group, and a parking enforcement officer for the Town of Barnstable, Massachusetts.