UMass Law inaugurates comparative law study abroad

UMass Law School has announced a two-week study abroad program in Lisbon, Portugal, in partnership with Universidade Católica Portuguesa (UCP), focused on U.S.-EU comparative law.

I'm quick to call out my employer when it does something bone-headed, so I should be willing to give praise when it does something right. This is the latter.

In 28 years of university teaching, I've consistently had to persuade deans that internationalism matters. Some, not always nor wholly to their discredit, have been so absorbed by the burdens of making the world better locally that they have not had the bandwidth to think about other cities and states, much less countries.

Some have just been fools. Like the one in Arkansas who told me that "our students don't care about that" to reject my proposed partnership with a Mexican school when Arkansas had the fastest growing per capita Latino population in the country, a new Mexican consulate was opening in Little Rock, and we supposedly cared about diversity.

It was a shock, then, to find that the new top dean this academic year at UMass Law, Sam Panarella, believes that international engagement is a vital component of being a good law school. Thanks to his leadership in just his first year as dean, 10 students from UMass Law will journey to Lisbon this very year to study the comparative law and policy of U.S. and EU data protection.

Rhode Island and the south coast of Massachusetts, where UMass Law is located, are home to the largest Portuguese-American population in the United States by a wide margin. So the program is a welcome and logical fit for 14-year-old UMass Law School. The program is made possible, especially for students, by generous support from the Center for Portuguese Studies and Culture at UMass Dartmouth, which does important work in its cultural niche.

We plan to repeat the Lisbon program in future years, in other areas of comparative focus, taking advantage of the varied expertise of law faculty at UMass and UCP. There are hurdles to overcome. But I'm hopeful that this is just the beginning of UMass Law's portfolio on international engagement.

To combat corruption, India Supreme Court strikes down dark money system, cites U.S. precedents

Late last week, the Supreme Court of India struck a blow for transparency and accountability when it ruled unconstitutional a system of anonymous political donation.

In a 2017 law, India had adopted a system of "electoral bonds." These are not investment bonds. Rather, to make a political donation, a donor was required to buy a political bond from the State Bank of India, and the bank then gave the money to the indicated political candidate.

The bond system was adopted ostensibly to further transparency and accountability. By requiring all political donations to be processed by the state bank, regulators could ensure compliance with donor restrictions. The system was supposed, then, to balance donor anonymity—a legitimate extension of free speech rights—with anti-corruption regulation.

P.M. Narendra Modi speaks to Pres. Biden at the G20, 2022.

White House photo via Flickr

But as Darian Woods reported for The Indicator, the party in power of Prime Minister Narendra Modi received 90% of donations. It seems less likely that imbalance represented overwhelming enthusiasm for the Modi administration and much more likely that corporate donors sought favor with the administration and feared retaliation otherwise, despite their seeming anonymity. For while they were anonymous to the public, their identities were known to the state bank. And the state bank is under the control of the administration.

The India Supreme Court ruled that the electoral bond system is incompatible with the fundamental "right to know" (RTK), that is, with Indian norms of freedom of information (FOI). I wrote in 2017 about India's Right to Information Act (RTIA), a statutory instrument akin to the U.S. Freedom of Information Act (FOIA). FOI, or access to information (ATI), for India, though, is in sync with contemporary norms elsewhere in the world, notably Europe, where RTK or FOI is recognized as a human right. Courts such as the India Supreme Court, like the Court of Justice of the EU, therefore have the constitutional enforcement power of judicial review.

The India Supreme Court, as it often does on important constitutional questions, surveyed other common law nations. And despite our weak and non-textual recognition of FOI as a constitutional right, the United States earned several mentions. Saliently, the court cited the old stalwart, Buckley v Valeo (U.S. 1976), for "concern of quid pro quo arrangements and [the] dangers to a fair and effective government. Improper influence erodes and harms the confidence in the system of representative government." Disclosure, the India court reasoned,

helps and aides the voter in evaluating those contesting elections. It allows the voter to identify interests which candidates are most likely to be responsive to, thereby facilitating prediction of future performance in office. Secondly, it checks actual corruption and helps avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. Relying upon Grosjean v. American Press Co. (U.S. 1936), [disclosure] holds that informed public opinion is the most potent of all restraints upon misgovernment. Thirdly, record keeping, reporting and disclosure are essential means of gathering data necessary to detect violations of contribution limitations.

For a more recent vintage, the India court cited Nixon v. Shrink Missouri Government PAC (U.S. 2000): 

[T]he Supreme Court of the United States observes that large contributions given to secure a political quid pro quo undermines the system of representative democracy. It stems public awareness of the opportunities for abuse inherent in a regime of large contributions. This effects the integrity of the electoral process not only in the form of corruption or quid pro quo arrangements, but also extending to the broader threat of the beneficiary being too compliant with the wishes of large contributors.

So the India court fairly observed that the U.S. Supreme Court has been willing to unmask donors, even if the Supreme Court has lately been less than enthusiastic about regulations it once, in a Buckley world, approved. Indeed, even as the U.S. Supreme Court rejected the disparate treatment of corporations in Citizens United v. FEC (U.S. 2010), it approved of disclosure requirements. 

The India court found support for disclosure in defense against corruption in other national regimes, too, for example, in Canada and Australia. Alas, there, comparisons with the United States deteriorate in practice. The India Supreme Court did not mention the dark (money) side to America's affair with transparency. Read more at the Brennan Center for Justice.

The case is Association for Democratic Reforms v. India (India Feb. 15, 2024).

Libro estudia poder de corte constitucional ecuatoriana

El abogado Ugo Stornaiolo Silva ha publicado un libro, Jueces Como Soberanos: Una Exploración Jurídico-Política del Poder Supremo de la Corte Constitucional Ecuatoriana (Amazon). (English below.)

Stornaiolo es un abogado ecuatoriano y estudiante de LL.M. Nos conocimos cuando él era estudiante mío en el Programa de Derecho Americano de la Universidad Católica de América en la Universidad Jagellónica de Cracovia, Polonia. Visitó generosamente mi clase de Derecho Comparado en UMass, a través de Zoom en la primavera, para hablar sobre derecho constitucional comparado, especialmente a la luz de notables decisiones recientes de los tribunales ecuatorianos con respecto a los derechos indígenas y los derechos de la naturaleza.

Aquí está el resumen del libro nuevo.

Por lo dispuesto en la Constitución actualmente vigente, la Corte Constitucional ecuatoriana es una de las instituciones más importantes del diseño constitucional ecuatoriano, y sus extensos poderes, sin contrapesos o fiscalización, podrían sugerir que es un ente soberano dentro de nuestro país frente a una institucionalidad de poderes separados que no puede ejercer sus funciones fuera de su control.

Sin embargo, la soberanía de la Corte Constitucional no es un fenómeno expreso, por lo que demostrar su condición soberana podría significar un cambio de paradigma en el entendimiento crítico de nuestro propio ordenamiento político y jurídico.

Stornaiolo escribe para el websitio, The Libertarian Catholic (El Católico Libertario). Para conocer una muestra en inglés de su trabajo sobre el constitucionalismo ecuatoriano, consulte su artículo de 2021,  "Originalism and Textualism Are Not Enough Against Constitutional Lawfare" ("El Originalismo y el Textualismo No Son Suficientes Contra la Guerra Jurídica Constitucional").

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Attorney Ugo Stornaiolo Silva has published a book, Jueces Como Soberanos: Una Exploración Jurídico-Política del Poder Supremo de la Corte Constitucional Ecuatoriana (Judges as Sovereigns: A Legal-Political Exploration of the Supreme Power of the Ecuadorian Constitutional Court) (Amazon).

Stornaiolo is an Ecuadorean lawyer and LL.M. student. We met when he was a student in my class in the American Law Program of The Catholic University of America at Jagiellonian University in Kraków, Poland. He generously visited my Comparative Law class at UMass, via Zoom in the spring, to talk about comparative constitutional law, especially in light of recent noteworthy decisions by Ecuadorian courts regarding indigenous rights and the rights of nature.

Here is the précis of the book (my translation).

Based on constitutional law as presently in force, the Ecuadorian Constitutional Court is one of the most important institutions in the Ecuadorian constitutional design, and its extensive powers, without checks or oversight, could suggest that it is a sovereign entity within our country, in opposition to the separation-of-powers framework, by which one cannot exercise power beyond the scope of authority.

However, the sovereignty of the Constitutional Court is not an explicit phenomenon, so demonstrating its sovereign condition could mean a paradigm shift in the critical understanding of our own political and juridical order.

Stornaiolo writes for the website, The Libertarian Catholic. For a taste in English of his work on Ecuadorian constitutionalism, check out his 2021, paper,   "Originalism and Textualism Are Not Enough Against Constitutional Lawfare."

Comparative law class explores death, migration, more

Publicdomainvectors.org

Law students in my comparative law class examined a range of compelling issues this spring, including medical aid in dying, immigration reform, sexual assault and violence against women, and restorative justice in Islamic law; and we benefited from Zoom guests, who joined from Afghanistan, Belgium, Poland, and America.

Teaching comparative law is a distinctive joy, as I have opined previously, because always there is more to learn. The subject gives students with wide-ranging passions an opportunity to explore previously untapped veins of research. Everyone in the class, including me, shares in the riches that are surfaced.

I owe gratitude to special guests who joined our class via Zoom to enrich our understanding and skills.

• Sylvia Lissens, a Ph.D. candidate and teaching assistant in comparative law, joined from KU Leuven in Belgium to talk about EU law-making and share a European legal perspective.
• Ugo S. Stornaiolo Silva, an Ecuadorean lawyer and LL.M. candidate, joined from Jagiellonian University in Poland, to talk about Ecuadorean constitutional law and share a Latin American legal perspective.
• A Dutch friend (whose name I withhold for his security), a humanitarian aid worker, joined from Kabul, Afghanistan, to talk about aid delivery within domestic legal constraints in the Middle East.
• Misty Peltz-Steele, a law librarian (and my generous wife), joined from Roger Williams University Law School in Rhode Island to orient students on foreign, comparative, and international legal research.
  

Next year, I'll be on a break from teaching comparative law, as I tackle two sections of 1L torts. Fortunately, to tide me over, I have a raft of ambitious and thoughtfully developed student research projects on which to ruminate, including the following. I thank our guests and especially thank my students for a rewarding semester.

Sarah Barnes, Dignified Death: A Comparative Analysis of Medical Aid in Dying Between the United States and the Netherlands.  Medical aid in dying (MAID), also known as physician assisted suicide, has been a growing concept globally for several decades. The ethical, moral, and legal issues surrounding the practice have caused some jurisdictions to proceed with caution and others to abandon it completely. While creating processes and procedures around MAID can be complicated and daunting, a few countries have managed to successfully implement a system in which their citizens can participate. The following compares and analyzes two jurisdictions, the United States and the Netherlands, that have managed to provide this practice and allow those who are eligible a way to die with dignity.

Morgan Dunham, Implementing Change: A Call for a Point-Based Immigration System in the United States. As the United States attempts to compete on a global scale with other economic powers, the ability of countries to attract foreign workers to their shores permanently is placed under a microscope. While immigration is a controversial issue across the globe, it is also a growing reality. This paper examines the U.S. employment-based immigration system in comparison with the employment-based hybrid system of the Commonwealth of Australia, focusing on its use of a point-based merit system in screening applicants. In addition, this paper examines attempts by legislators in each country to incorporate elements of the other system to improve efficiency. Through an overview of each country’s paths to legal permanent residency, zones of convergence are analyzed to better highlight the benefits and limitations of each system. 

Jordan Lambdin, "Call Them by Their True Names": Comparing the United States Violence Against Women Act to Chile's Femicide Laws. Violence against women is linked to legal and social institutions, as well as cultural value systems. This project compares the legal systems and codes relating to violence against women in the United States (U.S.) and Chile. The objective of this project is to compare the similarities and differences between the U.S. approach to criminalize domestic violence and Chile’s femicide criminalizing code, namely the lack of a femicide/intimate partner homicide definition or criminalizing statute. This project aims to explain the different U.S. and Chilean cultural and legal responses to criminalizing violence against women. Both systems are part of a global culture of violence against women that aims to physically and culturally destroy women as a group. The result is the repeated destruction and death of many thousands of women.

Sara Zaman, What is a Sexual Offense?: A Legal Comparison Between Pakistan and the United States. Sexual offenses are fairly defined in the same manner across countries. The passage of Pakistan’s Protection of Women (Criminal Laws Amendment) Act of 2006 played a key role in defining sexual assault against women after the Hudood Ordinance of 1979 received severe criticism from the Pakistani population and human rights groups. Likewise, in the United States, the Model Penal Code draft of 1962 also provided a definition of sexual assault. The two documents have striking similarities despite the fact that they were written thousands of miles apart by very distinct cultures. However, the differences are still noted. The laws of both Pakistan and the United States can be improved by comparing and contrasting these two documents and incorporating the necessary and important provisions that they may lack.

[Name withheld for political sensitivity,] Restorative Justice Theory: Iran and USA.  This paper explores the forms of punishment and mitigation related to criminal acts in Iranian and American criminal law, with a predominant focus on the restorative justice theory. The purpose of this paper is to form a comparative analysis between the Restorative Justice theory in Iran and the United States. This paper will touch on subjects such as, why Iran and the United States moved towards to restorative justice theory, how their criminal courts framework function, a comparative analysis of the act of excusing the guilty party in criminal cases between the lawful frameworks and the comparison of Qisas in Iran and restorative justice theory in the U.S. Finally, I will highlight the similarities and differences between the restorative justice theory in Iran and the United States. This paper hopes to clarify the United States construct of justice lacks the critical components of mercy and compassion which are essential towards the attainment of a fair and equitable justice system.  As a guidance for progressing, the U.S. should look at the Iranian criminal justice system as an example of how to provide a fair and just system.

Flags from Flagpedia.net.

Lissens presents EU data protection, IoT research

Sylvia Lissens, a Ph.D. student and teaching assistant at the KU Leuven Centre for Global Governance Studies in Belgium, presented part of her doctoral research comparing U.S. and EU data protection law at a doctoral seminar in Lyon, France, in December.

In her research, Lissens focuses on the internet of things (IoT) to examine how American and European law protects the personal data that machines increasingly collect. She has a law degree from KU Leuven and a background in criminology, so is especially interested in government access to personal data, which has been a sticking point in trans-Atlantic privacy negotiations.

Looking at the emerging norms in state legislation in the United States, on the one hand, and at developing data protection jurisprudence in the European Union, on the other hand, Lissens hopes to identify points of convergence and divergence that might smooth the way forward for agreement over data flows.

In Lyon, Lissens presented findings from the EU leg of her research at the International Doctoral Seminar in European and International Human Rights Law, hosted by the Université Jean Moulin Lyon 3. She explained how the broad range of data collected by devices in our homes, from phones to refrigerators, will confront national security and international trade regimes with new challenges in the protection of personal privacy.

Comparative law is among Lissens's teaching responsibilities at KU Leuven. She joined my Comparative Law class by Zoom this semester to provide an EU perspective on contemporary European legal issues. Students' experience was greatly enriched by both her experience as a professional and her informed perspectives as a Belgian voter. I'm privileged to serve on Lissens's dissertation committee.

Malaysian court upholds civil liability for security firm after employee-bodyguard shot, killed own client

With attenuated liability theories arising from contemporary gun violence proliferating—in lawsuits against parents, schools, sellers, and government—a case of vicarious liability for gun violence in Malaysia caught my attention.

In October 2022, the Malaysian Federal Court affirmed a liability award to a shooting victim against the security firm that employed the shooter.

In 2016, businessman Ong Teik Kwong, whom police investigated for ties to organized crime but never charged, was in a car in George Town, Penang Island, Malaysia, when he got into an argument with his bodyguard, Ja'afar Halid. Halid shot and killed his client Ong, then proceeded to shoot seven other people, killing two.

One of the surviving shooting victims was the plaintiff in the instant case, Mohamad Amirul Amin Bin Mohamed Amir. A news videographer for Radio Televisyen Malaysia, Amirul was passing on a motorcycle and stopped to aid one of the victims. He told the courts that he did not know Halid was armed. Halid shot Amirul. Star TV News reported the lower court outcome in 2019.

Halid was tried, convicted and sentenced to death by hanging. I can find no subsequent report of whether or when execution occurred.

Amirul meanwhile won compensation against GMP Kaisar Security upon a theory of respondeat superior, or vicarious liability running through employment. The Malaysian legal system is a hybrid of colonial common law and customary and Islamic law. The law of obligations with regard to respondeat superior is substantially a product of British common law, and the key test for respondeat superior is the same: An employer may be held liable for the acts of an employee within the scope of employment.

My torts class and textbook introduce respondeat superior in the study of negligence, when many theories of vicarious liability become salient. It's important for students to learn, though, that respondeat superior is not a negligence doctrine. It operates irrespective of culpability.

That said, it's often difficult for plaintiffs to prove respondeat superior liability when an employee commits an intentional act, especially a criminal act of violence. Criminal violence is not usually part of someone's job, so the employee-perpetrator acts outside the scope of employment.

That's what makes the Malaysian case interesting. On the one hand, as a bodyguard, Halid had one of those rare jobs in which committing an act of violence, even a murder, might come within the scope of employment. On the other hand, Halid killed the very man he was supposed to protect.

Those facts suggest that the case would fail upon the usual analysis. But the lower and higher Malaysian courts focused on the carrying of a firearm rather than on the act of killing. In Malaysia, unlike the United States, there is no right to bear a firearm. Licenses are attainable, but the system is restrictive.

Federal Court Judge Harmindar Singh Dhaliwal reasoned:

Now, Jaafar's actions may have been unauthorized by his employer but the pertinent question to ask is whether Jaafar's actions in unlawfully discharging his firearm and causing injury to Amirul was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable. On the facts of this case and for the reasons we have already stated, the answer must be yes. To put it in another way, Jaafar's wrongful act was not independent from the task he was employed to do.

Relying on a Canadian precedent, the court offered a further rationale that squares well with the scope of civil liability in American tort law.

The Supreme Court of Canada ... explain[ed] that vicarious liability is generally appropriately involved where there is a significant connection between the creation or enhancement of risk and the wrong that flows from the risk. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is a risk to another or to others within the range of apprehension.

The above-referenced cases arising from gun violence in the United States involve direct liability, not vicarious liability. They allege that the defendants were themselves negligent, and that their negligence proximately caused the later intentional shootings. The causal link is not easily proved.

Despite the distinction, there is a common concept animating the imposition of liability upon the attenuation of employment and upon the attenuation of causation. Scope of employment posits essentially that the pursuit of the employer's ends, if not the culpability of the employer, proximately resulted in the employee's injurious act.

All the same, the Malaysian Federal Court's conclusion would be difficult to reach on comparable facts in the United States. With gun possession a matter of license rather than right, it was easier for the Malaysian court than it would be for an American court to focus on the entrustment of the firearm rather than the use of it. As a matter of strict vicarious liability, rather than direct negligence, an American court would not be persuaded easily to effect the same shift in focus.

The case is GMP Kaisar Security v. Amirul, Civ. App. No. 02(f)-44-07-2021(P), [2023] 1 MLRA 99 (FCJ Oct. 18, 2022).

Chinese aid in foreign development, Taiwan's dwindling number of allies warrant Western concern

Honduras severed ties with Taiwan and doubled down on ties with China just days before House Speaker Kevin McCarthy met in California with the president of Taiwan.

The severing of diplomatic relations between Honduras and Taiwan is an important sign for global security, well beyond the bilateral significance. The People's Republic of China (PRC) has been executing a methodical campaign to isolate Taiwan from the world, a potential preliminary step to an assertion of control that would test the U.S. pledge to defend the disputed territory.

Chinese development policy is a fascinating subject; I take it up each year in one hour with my Comparative Law class.  Evidence abounds to support disparate theories on what the PRC means to achieve with its foreign aid packages. From well meaning humanitarian goals to Machiavellian world domination: it's anybody's guess what's being said in the highest levels of Beijing briefings. I'll paste below the reading list my class used this year to get a handle on this wide-ranging sub-subject. The discussion always is the best of the course.

Around the world, I have seen the vast reach of renminbi. The infrastructure projects alone are simply stunning. Chinese flags boast of telecommunication investment in distant and dusty towns in West Africa and South America. Bridges soar in Croatia and Montenegro; dams in Thailand and Sudan. Glassy government buildings adorn capitals such as Windhoek and Harare. And then there are the ports, from Togo to Sri Lanka to Peru. That's just a sampling of what I've seen with my own eyes.

A Dutch friend working in the aid sector in the Middle East was puzzled when I first asked for his appraisal of Chinese objectives. It's obvious, he opined. They just don't say it.

He and I were in the remote Indian Ocean island nation of the Maldives in March, where I witnessed Chinese-funded projects: a shining national museum, a bridge connecting the capital to the airport island across open ocean, and a massive new airport under construction. 

The Sinamalé Bridge, or China-Maldives Friendship Bridge, links capital Malé to Hulhulé Island.
RJ Peltz-Steele CC BY-NC-SA 4.0

Velana International Airport at left; the new Maldives airport under construction at right.
RJ Peltz-Steele CC BY-NC-SA 4.0

The Maldives National Museum, Malé, opened in 2010.
RJ Peltz-Steele CC BY-NC-SA 4.0

The list of countries that have severed ties with Taiwan upon PRC quid pro quo has grown so long that it's difficult to track, and countries in Latin America and the Caribbean are well represented. I was in Paraguay last year not long after it asked Taiwan for $1bn to remain friends. Typically of countries in the mix, Paraguay is trying to play both sides for the best deal, which, in the end, probably means just using Taiwan as leverage to get the best deal from the PRC. Heritage reported in late February that Paraguay was one of only 14 remaining countries, then, still maintaining ties with Taiwan. 

Last week, Honduras renounced that club. NPR contextualized the move:

Honduras had asked Taiwan for billions of dollars of aid and compared its proposals with China's, Wu said. About two weeks ago, the Honduran government sought $2.45 billion from Taiwan to build a hospital and a dam, and to write off debts, he added....

Taiwanese President Tsai Ing-wen said her government would not "engage in a meaningless contest of dollar diplomacy with China." ....

For decades China has funneled billions of dollars into investment and infrastructure projects across Latin America. That investment has translated to rising power for China and a growing number of allies.

In Honduras, it has come in the form of construction of a hydroelectric dam project in central Honduras built by the Chinese company SINOHYDRO with about $300 million in Chinese government financing.

Honduras is the ninth diplomatic ally that Taipei has lost to Beijing since the pro-independence Tsai first took office in May 2016.

Taiwan still has ties with Belize, Paraguay and Guatemala in Latin America, and Vatican City. Most of its remaining partners are island nations in the Caribbean and South Pacific, along with Eswatini in southern Africa.

As Reuters put it in a headline yesterday, "US, Taiwan seen powerless to stem island's diplomatic losses in Latin America."

When Taiwan President Tsai Ing-wen met with McCarthy in California, she was on her way back from visiting Belize and Guatemala. Media reports tended to spin the meeting as a show of tough-on-China Republican policy. I rather assumed the view I heard from one commentator, that meeting in California was a way not to meet in Taiwan, thus, not to poke the dragon as Nancy Pelosi did.

Schooled on 1970s détente, I'm not much of an American imperialist, and these days, I'm not much of an American exceptionalist. But I do worry that we will one day wake up to find ourselves a quirky outpost of remnant democracy in a world of purported harmony under authoritarian paternity.

Here's your Comparative Law homework for two hours on law and development, including a discussion of the PRC.

Historical and theoretical:

• John Henry Merryman, Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement, 25 Am. J. Comp. L. 457 (1977).

• Jedidiah Kroncke, Law and Development as Anti-Comparative Law, 45 Vand. J. Transnat'l L. 477 (2012).

Policy:

• Nic Cheeseman, Why There's a Case for Giving Foreign Aid to Authoritarian Regimes, The Conversation (Jan. 14, 2019).

Cheeseman here summarizes his remarks at a University of Birmingham debate in 2019. The whole debate is on video on YouTube, so you can watch it if you like (cued to Cheeseman, who spoke first).

PRC:

• Stephen Paduano, China's Investments in Rwanda Raise Familiar Questions About Debt, The Atlantic (Aug. 3, 2019)Deborah Brautigam & Meg Rithmire, The Chinese "Debt Trap" Is a Myth, The Atlantic (Feb. 6, 2021).

• Keith Bradsher, In Global Slowdown, China Holds Sway Over Countries' Fates, N.Y. Times, (Oct. 7, 2022).James McBride, Noah Berman, & Andrew Chatzky, China's Massive Belt and Road Initiative, Council on Foreign Relations (last updated Feb. 2, 2023).

If you'd like to dig into the numbers of Chinese development aid, have a look at the Global China Initiative at Boston University, especially its recent (Jan. 2023) policy brief.

The older BRI exists alongside more recent, if less extravagant, Chinese policies in the Global Security Initiative (GSI) and the Global Development Initiative (GDI).  The GSI and GDI raise analogous questions. If you would like comparable overviews, I recommend Michael Schuman for The Atlantic (July 13, 2022) on the GSI; Joseph Lemoine and Yomna Gaafar for New Atlanticist (Aug. 18, 2022) on the GDI (pro-Western perspective); and Professor Amitrajeet A. Batabyal for The Conversation (Aug. 4, 2022) on the GDI.

If you would like to learn more about the Chinese debt cancellations in Africa mentioned in the N.Y. Times article, there's a good and fairly even-handed article from Voice of America News (Aug. 25, 2022). One thing I have not given you here is any of the abundant statements from Chinese authorities and state-sponsored media defending Chinese policy; you can find them readily online yourself if you wish to get a flavor.

Conclusion:

Engage with this compelling perspective piece authored by a Harvard law student in 2018. Attorney Sabrina Singh is now an associate in the ESG group at Latham & Watkins in New York City.

• Sabrina Singh, Development Versus Anti-Development: Your Choice Matters, Harv. L. & Int'l Dev. Soc'y (May. 13, 2018).
  

A thanks to my Dutch friend (whom I'm not naming for security) for joining the class from the Middle East via Teams to discuss the delivery of humanitarian aid in conflict zones.

Expert explains Ecuadorean constitutional law

Ugo Stornaiolo Silva
(via Mises Institute)

An Ecuadorean lawyer and LL.M. candidate, Ugo Stornaiolo Silva thinks deeply about constitutional law and social and economic organization. Today he'll speak to my Comparative Law class.

The Constitutional Court of Ecuador has been garnering headlines in recent years with landmark rulings in areas such as indigenous rights, animal rights, and the rights of nature. I wrote here last summer about the successful habeas petition of a woolly monkey. That case followed a decision in which the court compelled the government to hear from indigenous people in the Amazon before authorizing extraction projects (before decision).

Last year Stornaiolo wrote a piece for The Libertarian Catholic (other work there) comparing the U.S. Supreme Court with the Constitutional Court of Ecuador. While the Ecuadorean court often appears to the world as a monolithic bastion of progressivism, the court in fact has an ideological divide that is analogous to, though different from, the conservative-liberal divide of the U.S. Supreme Court, Stornaiolo explained. He wrote,

[f]or instance, the Ecuadorian Constitutional Court textualist faction would be composed by President Salgado, and judges Nuques, Herrería Bonnet, Corral, with both Salgado and Corral filling in for Clarence Thomas position as the often-dissenting originalist in the Court, and Herrería Bonnet as more moderate, and its so-called "garantist" and "progressive" faction would consist of judges Grijalva, Ávila, Lozada, Salazar and Andrade, with Ávila and  Salazar filling in for Sonia Sotomayor’s position as the most activist judges, considering they have drafted some of the most controversial majority opinions of the Court in cases such that ruled on the constitutionality of cannabis recreational use, same-sex marriage, abortion and the criminality of teenage consensual sexual relations.

Stornaiolo's other work has examined comparative constitutional interpretation and the public-private divide. In the United States, Stornaiolo has been an academy fellow for the Heritage Foundation and a research fellow for the libertarian Mises Institute. I was fortunate to have Stornaiolo as a student in my American Tort Law class in fall 2022 at Jagiellonian University in Kraków, Poland, where he is studying for his LL.M. in a joint program with The Catholic University of America in Washington, D.C.

On Monday, March 20, Stornaiolo will join my Comparative Law class via Zoom to talk about the Constitutional Court of Ecuador and comparative constitutionalism in Latin America more broadly.

With fascinating developments in constitutional law afoot in Latin America and the Ecuador Constitutional Court driving the trends, Stornaiolo is a lawyer to watch.

Rule of law depends at least in part on how we teach

Differences in legal education between civil law countries and the United States—and analogous divergence in priorities in the American law school classroom—might have ramifications for the rule of law.

Prof. Vernon Palmer leads an Obligations I class.
Tulane Public Relations via Wikimedia Commons CC BY 2.0

Legal education in the United States and in the civil law countries of Europe are famously different. The American model is identified with case law, the Socratic method, and inductive reasoning. The civil law model is identified with code, lecture, and deductive logic.

Both sides have plusses and minuses, and that might be why, in recent decades, we see signs of change and convergence. American legal education has sought to marginalize the traditional model to one strategy on a menu of effective pedagogies. Meanwhile, many schools in Europe have sought increasingly to import the "Paper Chase" style of classroom engagement.

Teaching periodically in Poland for more than 15 years, I've found students delightfully receptive to the classroom experience that U.S. law students take for granted. I'm inclined to conclude, generalizing of course, that the way U.S. law professors interact with students has the potential to contribute valuably to education in Europe, where lecture still predominates. My U.S. students tend better than their European counterparts to develop forensic skills and to use analogical reasoning.

At the same time, I have found, generalizing again, that my students in Europe are better versed than their American counterparts in the history and philosophy of law. Their understanding of context is informed by a storied Latin vocabulary. They are better able to convert memorized knowledge to application.

There is no doubt that the way law schools teach has an impact on how lawyers work and think about the law. What's less clear is the extent to which this impact represents a normative social advantage—for example, better preparing lawyers to protect human rights and uphold the rule of law.

In recent years, Europe has been struggling with rule-of-law crises in central and eastern Europe. In particular, populist movements embodied in the Duda and Orbán regimes in Poland and Hungary have given rise to disputes over judicial independence. In a similar vein, the Romanian legislature enacted judicial reforms in the late 2010s. 

Ostensibly, the Romanian reforms were implemented to combat corruption. But that's not how Brussels saw it. The reforms wound up before European Union courts, culminating in judgments in 2021 and in 2022. The 2021 judgment of the Grand Chamber has been well regarded as outlining a progressive tolerance for the development of the rule of law while affirming EU supremacy ("primacy") in constitutional law for matters within the union prerogative.

Unfortunately, Romanian resistance to that supremacy caused the Grand Chamber to revisit the problem last year. Notwithstanding the proceedings in European courts, pro-reform domestic authorities and the constitutional court of Romania had upheld the reforms. Authorities moreover asserted that lower court judges could be subject to discipline for testing Romanian constitutional court rulings against the requirements of EU law.

The Grand Chamber held in 2022 that "ordinary courts of a Member State" must be permitted "to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law"; and that domestic judges may not be disciplined for "departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law."

At the meeting of the General Congress of the International Academy of Comparative Law (IACL) in Asunción, Paraguay, in October, a panel on rule of law examined national reports from 16 countries, including the United States, Poland, Hungary, and Romania. I found especially compelling remarks by the rapporteur for Romania. (I'm sorry that I did not get the rapporteur's name; it does not appear in the composite issue report.)

Law professors everywhere, laudably, want their students to be prepared for any job, the rapporteur said. But European students feel they're trained as if to become judges. Roman heritage, Roman law, he said, is sacred. Motivated to prepare students to do legal reasoning, he said, European law professors train students that there is "only one correct meaning," "one true meaning" of a text, and the students, in turn, "become very formalistic." 

Often, he said, judges then "miss the point" by "applying law automatically." And that was the problem, he opined, with the Romanian constitutional court in upholding the judicial reforms. The court reasoned, he explained, that because rule of law exists in both the Romanian constitution and EU treaties, the court "blindly" concluded that Romanian law comports with EU law. "False," he said; "it's the way in which we teach."

In other words, the Romanian judges assessed black-letter law for comportment with black-letter law without digging beneath the surface. They were ill equipped, or declined, to look beyond formalism to test the law functionally. Moreover, by shielding the constitutional court's analysis from further interrogation in the lower courts, top jurists were excessively insistent on the exclusivity of their prerogative: one true meaning.

I don't know enough about the situation in Romania to assess the merits of the Romanian position, or the EU position, or the perspective of the rapporteur. But I was intrigued by his parting thought:

"I'm astonished," the rapporteur said, that "in the United States, you practically criticize law professors that they don't tell you the true meaning. It would be a pity to change that."

As I wrote recently, law professors in the United States are under great pressure to abandon traditional teaching methods in favor of bar prep and skills readiness. Law schools such as mine place little value on policy, theory, and moral deliberation, but prize memorized law and practice skills. The latter are valuable, to be sure. But it's the former that make law a profession and not mere occupation. 

Prioritization of occupational objectives pressures professors to abandon the traditional teaching strategies of the American model. Cases give way to code, or rules. Inductive reasoning gives way to deduction. Socratic dialog gives way to PowerPoint outlines, recall games, and lectures. This is convergence of a sort. It's not a good sort.

I don't contend that the traditional model of legal education in the United States is superior to other models. Nor would I enshrine the case method to the exclusion of a multitude of teaching strategies. But American legal education in the 20th century excelled at preparing lawyers to turn problems over and examine them through many lenses.

If we do our job right, law professors create a space for creativity to thrive. That creativity defines law as a profession. And only as professionals can lawyers safeguard the rule of law.

It would be a pity to change that.

Me and my mate Octavio Sosa in Paraguay. A first-year engineering student, he plays a mean guitar.
RJ Peltz-Steele CC BY-NC-SA 4.0

 

Israeli law profs raise alarm over judicial reforms

Proposed judicial reforms in Israel have set off a firestorm with critical characterizations comparing Prime Minister Benjamin Netanyahu with the likes of Jair Bolsonaro and Viktor Orbán.

Israel has seen a possible division—now familiar to the United States, cf., most recently, the House Speaker election (NPR)—between a traditionally conservative right and a more extreme right since Netanyahu retained office by allying with parties NPR characterized as "ultra-Orthodox religious" and "ultra-nationalist."

The reforms, which are not yet law, comprise two plans The New York Times described:

Under the first plan, a simple majority of lawmakers could override almost any revocation of parliamentary legislation by the Supreme Court, which can currently block laws on constitutional grounds. The court would only be able to prevent itself from being overruled by Parliament if all of its 15 judges unanimously agreed about the need to block a law.

Under the second plan, the government would be able to appoint a majority of the members of the panel that selects new judges, upending the current system in which government appointees form only a minority of panel members.

Israeli Supreme Court with Knesset behind.
Israeltourism via Wikimedia Commons CC BY 2.0

On the one hand, the proposals would weaken the Israeli judiciary. But some commenters, such as American conservative Josh Hammer, have observed that the proposals are not radical. My colleague Professor Dwight Duncan has argued that a U.S. Supreme Court majority, or at least super-majority, should be required to strike down legislation as unconstitutional. Arguably, the approach better balances the legislative and judicial branches than does extra-textual judicial supremacy. The second proposal would effect a selection process hardly more partisan than federal judicial appointments in the United States.

On the other hand, Israel is not America, and it might be a more urgently pluralist democratic experiment. As well, the ways of our dated Constitution are hardly exclusive pronouncements of best practices. In the context of populist executive aggrandizement in places such as Brazil and Hungary, and subordination of judicial power, as in Poland, the Israeli reform proposals are at least cause for concern.

Objections have come not only from Israeli liberals, but also from economic conservatives, who don't want the economic apple cart upset. The Jewish Telegraph Agency explained, "Foreign investors and international credit agencies have both signaled that if the reforms go through, they will downgrade their estimation of the country," disrupting perception of Israel as "a democratic oasis in the Middle East" possessed of "business savvy."

For the reform side, a proponent think tank posted a perhaps-too-playful, Schoolhouse Rock-style video on Twitter. For opponents, I received Friday from my friend and colleague Professor Roy Peled a statement signed by 198 Israeli professors, including, Professor Peled wrote, the majority of faculty from 13 law schools in Israel. The brief statement reads:

We, senior academic members of staff at law faculties in Israel, strongly oppose the regime change that the Israeli government is promoting under the guise of “legal reforms”. These far-reaching constitutional changes include providing the government with absolute control over the appointment of the judiciary; near complete elimination of judicial review; dissolution of civil-servant ministerial legal counsels as gatekeepers; and undermining the freedom of the press. In aggregation, these proposals suffocate the independence of the judiciary, dissolve the separation of powers between the branches of governments, and eliminate the rule of law. No recognized democratic country in the world operates under such conditions. The combination of the proposed changes is alarming and dangerous. It will bring far-reaching infringements of human rights, and strip Israel’s system of government of fundamental features of its structure as a democracy.

We call on those involved in the legislative process to avoid hasty constitutional legislation that would transform the character of the State of Israel, and we urge them to initiate a process of open, respectful, and tolerant deliberation with the aim of reaching broad agreements on these deeply consequential matters.

I'll park a copy of the letter with its signatories here for the next few months.

UPDATE, Jan. 31, 2023: Professor Peled today sent news of a companion statement by U.S. law professors.

With FIFA World Cup under way in Qatar, law students study sport and soft power, law and development

I'll be talking law, development, and the World Cup today in Kraków, Poland.

Thanks to the American Law Scientific Circle (KNPA) and American Law Program at Jagiellonian University (Koło Naukowe Prawa Amerykańskiego TBSP UJ and Szkoła Prawa Amerykańskiego UJ), in collaboration with the Columbus Law School at the Catholic University of America, for hosting me. This talk kicks off a KNPA lecture series on "Law and Sustainability" and begins at 3 p.m. CET at Pałac Larischa 203, Bracka 12.

I'll share some of the subject matter later.  Too much football to watch!

Shoe on other foot as US claims sovereign immunity in foreign court for firing Malaysian embassy worker

The U.S. Embassy in KL commemorates flight MH17 in 2014.
(Embassy photo, public domain, via Flickr)

Malaysian courts have been wrestling with the big bear of foreign sovereign immunity in an ursa minor case arising from the dismissal of a security guard from the U.S. Embassy in Kuala Lumpur.

As a torts and comparative law teacher, I'm interested in how courts manage foreign sovereign immunity. But most of the cases I read are about foreign-state respondents in U.S. courts. I suppose the inverse, the United States as respondent in a foreign court, happens often. But it doesn't often make my newsfeed.

Well, this story did. The shoe is on the other foot with the United States seeking to evade the hearing of an employment grievance in Malaysian courts.

Consistently with international norms, in the United States, the Foreign Sovereign Immunities Act (FSIA) (on this blog) generally codifies sovereign immunity for foreign states in U.S. courts. But an exception pertains for "commercial activity." 

The commercial exception, also consistent with international norms, only makes sense. When a foreign country is acting like any other commercial actor, say, buying toilet paper for the mission restroom, it should not be able to claim sovereign immunity to override its obligation to pay for the toilet paper (contract), nor to escape liability for its fraud in the transaction (tort). Sovereign immunity is rather reserved for when a state acts as a state, doing things only states can do, such as signing treaties and, however unfortunately, waging war—usually.

The exception is easier understood in the abstract than in application. In a case bouncing around the Second Circuit, and reaching the U.S. Supreme Court in 2018 on a related but different question, Chinese vitamin makers claim immunity from U.S. antitrust law. The respondent makers say that they are agents of the Chinese state insofar as they are compelled by Chinese economic regulations to fix prices. U.S. competitors see the cut-rate pricing as none other than anti-competitive commercial activity. The question arises under trade treaty, but the problem is analogous to the FSIA distinction.

Also regarding China, the commercial activity exception was one of the ways that state lawsuits against the People's Republic over the coronavirus pandemic tried to thread the needle on sovereign immunity. In the lawsuit filed in 2020 by the State of Missouri against the PRC filed in 2020, the Missouri Attorney General characterized the Chinese lab in Wuhan as a commercial healthcare enterprise. The district court disagreed in July, and the AG is appealing.

In the Malaysian case, according to the allegations, the U.S. Embassy gave no reason when it terminated a security guard in 2008 after about a decade's service. The security guard probably would not be owed any explanation under U.S. law. But the Malaysian Industrial Relations Act is not so permissive, authorizing complaints to the labor authority upon dismissal "without just cause or excuse."

The opinion of the Malaysian Court of Appeal in the case hints at some bad blood in the workplace and a bad taste left in the mouth of the dismissed guard: "He said he had been victimised by another staff named Rama who had tried to tarnish his good record as he had raised the matter of unreasonable management of the security post.... He said he could not believe that the US Embassy that is recognised the world over as the champion of human rights could have done this to a security guard like him."

Inexplicably, "a long languishing silence lasting some 10 years" followed the administrative complaint, the Court of Appeal observed. "Nobody involved and interested in this case heard anything from anyone. It is always difficult to interpret silence. That silence was broken with a letter from the DGIR [labor authority] calling for a conciliation meeting [in] September 2018.... There was no settlement reached.

"Unbeknown to the workman, the Embassy had [in] March 2019 sent a representation to the DGIR arguing that sovereign immunity applied and that the matter should not be referred at all to the Industrial Court." The United States thereafter succeeded in having the case removed to the Malaysian high court, a general-jurisdiction trial court.

The high court dismissed the case on grounds of U.S. foreign sovereign immunity. The Court of Appeal reversed, holding that the case should not have been removed. The Court of Appeal remanded to the Industrial Court, a specialized labor court, to take evidence on the immunity question. The Malaysian Federal Court recently affirmed the remand, lawyers of Gan Partnership in Kuala Lumpur have reported (Lexology subscription).

Like the FSIA, Malaysian law on foreign sovereign immunity distinguishes commercial activity, jure gestionis, from state action, jure imperii. The dismissed guard argues that his was a simple employment contract, so the United States was acting in a commercial capacity and is not entitled to sovereign immunity. The United States argues that the security of its embassy is a diplomatic matter entitled to the exercise of sovereign discretion.

The case in the Court of Appeal was Letchimanan v. United States (May 18, 2021). Gan Khong Aik and Lee (Ashley) Sze Ching reported the Federal Court affirmance to the International Law Section of the American Bar Association for Lexology on August 30 (subscription). Khong Aik and Sze Ching wrote about the Court of Appeal decision, United States v. Menteri Sumber Manusia (Minister of Human Resources) Malaysia, in July 2021 (Lexology subscription), and with Foo Yuen Wah, they wrote about the high court decision in August 2020 (Lexology subscription).

Scholars seek to stimulate socio-legal studies in Africa

At the global meeting of the Law and Society Association (LSA) in Lisbon earlier this month, scholars in the collaborative research network dedicated to Africa ("CRN 13") agreed to move forward with an independent Africa Law & Society Network.

Working alongside but apart from CRN 13, the "Africa Law & Society Network" has a web page and for the time being claims a mailing address at the Centre for Law and Society at the University of Cape Town (UCT). The aim, in time, is to build a vibrant organization that is representative of scholars throughout the continent. 

The network thus hopes to stimulate the coordination of socio-legal studies by African scholars in two respects in which previous efforts have floundered: to have African scholars charting their own direction for research, rather than being coordinated by Western-dominated organizations; and to decentralize and diversify leadership, overcoming the tendency to lean exclusively on South African institutions.

CRN 13 leaders at the meeting sported the slogan "#CiteAfricanScholars" on T-shirts. Citation to African scholars often is limited by structural constraints that Western researchers might not even be conscious of, such as the simple availability of the work. With limited institutional resources, African academics cannot always enter their works into the subscription databases on which researchers often over-rely. And academic writers not backed by well known institutions are disproportionately unable to negotiate copyright and access terms with publishers that favor long-term pay walls over open source.

Professor Dee Smythe (LSA, UCT, LinkedIn) addresses the CRN 13 meeting in Lisbon.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

 

Habeas petition for woolly monkey was valid, Ecuadorian court rules, recognizing right of nature

A silvery woolly monkey at the Louisville Zoo
(Ltshears CC BY-SA 3.0 via Wikimedia Commons)

The Constitutional Court of Ecuador entered a landmark ruling on the rights of nature in January when it recognized the legitimacy of a habeas petition on behalf of a woolly monkey named Estrellita.

Estrellita was removed from the wild illegally almost two decades ago. Fortunately she came to be in the care of a librarian and effectively became part of the family for 18 years. But when Estrellita suffered a respiratory emergency, and the family sought medical treatment, authorities seized her for commitment to a zoo. Fearful of the profound distress that must have afflicted Estrellita, besides her ailment, the family filed a habeas petition. Estrellita died, but the petition persisted in the courts.

I wrote in December about the Ecuadorian court's landmark ruling on indigenous rights. As I wrote then, the decision implicitly recognized the right of nature in tandem with indigenous peoples' conservation of natural resources. The Estrellita case makes explicit the judicial recognition of Ecuador's constitutional right of nature, independent of human rights.

Elizabeth Gamillo wrote about the case for Smithsonian in April. Her story linked to a certified translation of the final judgment in the case, "Estrellita Monkey," No. 253-20-JH/22 (Rights of Nature and animals as subjects of rights) (Ct. Const. Ecuador Jan. 27, 2022).

Gamillo added: "Other countries, like Canada and New Zealand as well as several cities in the United States, have treaties or local laws that give wild animals some protection. In November 2021, the United Kingdom recognized several invertebrates, including lobsters, octopuses and crabs, as sentient beings. However, these rights have not been applied at the constitutional level, Science Alert reports."

Student comparative law research spans sport, schools, drugs, recidivism, regs, copyright, crypto

He who learns teaches.

—widely cited as an Ethiopian or African proverb, the statement has parallels in other cultures and is sometimes paired with the Latin "qui docet discit," "he who teaches learns"

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Image by Gordon Johnson via Pixabay

Because we are reasonable people, we can all agree that Torts is the most important course in law school.

Comparative Law, however, takes the cake as the best course to teach. That's because one can teach it without exhaustive knowledge of the doctrinal subject matter. For no one knows the law of every jurisdiction in the world.

Thus, for me and my co-teacher, a supremely skilled embedded librarian, Comparative Law is a never-ending opportunity to learn from our students. And our students in spring 2022, as in past semesters, had plenty to teach us.

This is a selection of the ambitious paper topics that our Comparative Law students tackled in the spring.

United States, Vietnam. Firaas Z. Akbar, Free Enterprise Versus Freedom to Enterprise: A Comparative Analysis of Entrepreneurship Rights in the United States and Vietnam. Despite pronounced cultural and ideological differences between the republics of the United States and Vietnam, one of the goals shared by both societies is promoting entrepreneurship among their citizens. While not explicitly provided by the U.S. Constitution, free enterprise has impliedly been read into its language through a series of judicial decisions since the nation's founding, within a legal system where courts are bound to follow precedent. Vietnam enshrined a broad right to entrepreneurship into its constitution as part of an effort to transition to a more market-friendly economy. Yet constitutionalism under Vietnam's civil law system works differently, where rights require legislative substantiation to take effect. This analysis explores how Vietnam gives effect to this right and compares this model of promoting entrepreneurship to the U.S. approach.

United Kingdom (pre-/post- Brexit), Switzerland. Alessandro Balbo Forero, The Impact of Brexit on Football. There has been much debate and discussion regarding the UK exit from the European Union in 2020. Brexit had an impact on the sports industry as a whole, leading to debate and discussion by legal sport scholars on football, in particular, the English Premier League (EPL), and whether Brexit is good or bad. The unrestricted movement of players across the European Union is the catalyst for competition and player power. Prior to Brexit, players enjoyed the freedom of movement between EU Member States when their contracts expired. The current Governing Body Endorsement (GBE) requirements established after Brexit restrict player movement, and, thus, players are no longer able to sign with teams in the UK without first satisfying specific requirements that are tied to their respective countries' FIFA rankings. Although players are able to appeal to an exception panel, it is still not guaranteed to be granted a GBE. The Swiss model of player immigration would provide the UK with the best of both worlds. Brexit would still be in place, thus enjoying the benefits along with it, like unrestricted EU broadcasting regulations, and players would enjoy the freedom of movement once granted by the European Court of Justice in the Bosman ruling. The Swiss model satisfies both the FA and EPL, because highly qualified, homegrown players would continue to be produced while maintaining the multicultural, global product that is the EPL.

United States, England. Elizabeth Cabral-Townson, Using a Comparative Analysis of Special Education Disputes in the United States and England to Develop a Model that Better Serves Schools and Families.  Every country with a formal public education system has a responsibility to meet the needs of all enrolled students, including those with disabilities. Many countries have developed laws or regulations that describe their special education processes and procedures. In some instances, parents and school districts disagree about what a student with a disability requires to make progress in school. In these instances, there are several different dispute resolution techniques that can be an efficient way to resolve issues. Both the United States and England have developed laws and regulations specifically related to special education disputes. There are both similarities and differences to how the United States and England handle special education disputes, and elements from each country may be used to develop a more universal model. A preferred approach may be a consistently used three-tiered system that ensures the timely resolution of special education disputes using no-cost or low-cost options.

United States, Norway. Emma Clune, Prison Education as Means to Reduce Recidivism: A Comparative Analysis of the Effects of Prison Education Programs and Principles of Punishment in Norway and the United States. Access to prison education programs differs greatly between the United States and Norway. In the United States, prison education programs are not widely accessible due to issues such as lack of funding and resources. The programs that are available do not often prepare incarcerated persons for workplace environments after release. In Norway, where education is viewed as a fundamental right, all inmates are eligible to participate in education programs, and every prison facility provides access to academic and vocational programming. Norwegian prison education programs operate based on the "principle of normality," the idea that life inside prison should emulate life after release.  Research confirms that participation in educational programming while incarcerated reduces an offender's likelihood of recidivating by improving the offender's mental health and increasing the likelihood of employment after release. Emulating Norway's prison education programs and adopting the principles of Norway's penal system could be a means to reduce high recidivism rates and ultimately decrease the rapidly growing prison population in the United States.

United States, Canada. Judith Patricia Cruz Caballero, A Comparative Analysis of Refugee Law in the United States and Canada. The United States and Canada are world-leading nations for their international law policies. Refugees are a group of the population displaced from their home country due to war, discrimination, or violence. The United Nations created the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees to create a better humanitarian world. However, as the refugee crisis continue to increase over the next few years, the refugee policies of host nations will impact the support refugees receive. This paper examines refugees' procedures, immigration processes, and funding structures provided to refugees in both countries. In addition, the paper aims to compare each
nation's method of handling refugees in a time of international crisis. Finally, after analyzing each nation's policy areas, the paper provides recommendations to help increase the efficiency and effectiveness of refugee response in the United States and Canada.

Netherlands, Colorado. Ryan Gulley, Comparing the Legalization of Drugs in the Netherlands and Colorado: Recommendations for the Future. This paper compares the similarities and differences between the recent implementation of changes regarding drug use within the legal systems of the country of the Netherlands and the state of Colorado. The paper begins with a brief introduction to both systems. Following the introduction is a brief history of the criminalization of drugs within the two systems, as well as the reason for the changes that have been made in response. The current landscape of the legal systems will then be laid out, including where society stands today. I then examine the effects of those changes. The paper concludes by providing recommendations based on the lessons learned from the changes that were made in both areas.

United States, European Union. Austin Gutierrez, SOPA & PIPA vs. Article 17 "Directive on Copyright in the Digital Single Market." This paper compares the failed U.S. legislation, the Protect IP Act (PIPA) and Stop Online Privacy Act (SOPA), to the currently enacted Directive (EU) 2019/790, Directive on Copyright in the Digital Single Market, with a focus on Article 17. This paper goes through the history and then the past and current critiques of each legislation. This paper then creates a hypothetical bill using methodologies from both legislations. This paper has discovered that the current critics of U.S. online piracy protection believe that the U.S. should legislate in favor of website blocking. The EU critics believe that the authorization requirement establishes a mandatory requirement of general monitoring, which may be too much of a request from the website owners. In conclusion, this paper decides that it is in the best interest of the United States to let other nations develop and test online piracy protection while protecting current copyright holders through the use of website blocking for piracy focused websites. 

United States, China, Germany. Christopher Hampton, Comparative Analysis of Crypto Assets/Blockchain Regulation Between PRC & Germany to Form a Spectrum Based Guide for Impending U.S. Regulations. Crypto-assets and blockchain technology have created an array of regulatory responses globally, most of which address the risks associated with illicit activities, consumer protection, and financial stability. The choice of fitting crypto into traditional frameworks, modifying existing regimes, or forming bespoke regulations to address these risks inherently creates strategic variations across the board. However, this range of approaches creates a guiding spectrum for late movers, namely the United States, to survey during impending crypto-asset deliberations. By synthesizing Germany's and China's leading, yet antithetical, approaches to the same priorities, this paper reveals both sides of the spectrum (i.e., acceptance v. full ban), details how the respective strategies address the given concerns, and weighs perceived strengths and weaknesses of their enactments. Further, upon consideration of the United States' current regulatory uncertainty and objectives, recommendations are proffered in promotion of sustainable growth and innovation for the industry. Although the collective knowledge necessary for proper regulations is not solely within this analysis, adequate and sustainable decisions can only be made through considerations as equally expansive and flexible as the emerging industry of focus. Similarly limited, policymakers would be prudent to include market participants in their deliberations and promote international teamwork. Ultimately, regulatory clarity is necessary in any regard for the industry to truly evolve, though the path of evolution depends heavily on U.S. decisions. 

Germany, Russia.  Nicholas Hansen, A Comparative Examination of Environmental Regulatory Policy Models in the Federal Republic of Germany and the Russian Federation. Regulation of the economic activities of any sovereign nation can be foundational in determinations of status, power, and recognition in modern geopolitics. In modern environmental regulation theory, two primary characterizations of economic regulations are found. This analysis compares the use of "process-integrated" environmental policy, to the use of "end-of-pipe" environmental policy, and their relative benefits and hindrances. Process-integrated regulatory policy involves a more direct intervention in production processes and business action, whereas end-of-pipe regulatory policy involves the establishment of penalties for businesses that exceed their allotted carbon output, and violate industrial or automotive emission laws.  These policies have disparate impacts on the economic health of the sovereignties in which they are employed, differing levels of legal security for businesses operating in these sovereignties, and these impacts have been modeled and cataloged in this article.

This author posits that the time-frame around which either model is implemented, and the substantive form of these model regulations have an indirect impact on the long-term economic growth and propensity for foreign investment.  This hypothesis is most principally demonstrated by a comparative examination of the "process-integrated" model presently in use by the Federal Republic of Germany, and the "end-of-pipe" model presently in use by the Russian Federation. This article seeks to explain the characterization of the German and Russian regulatory models as an "end-of-pipe" or "process integrated" model and the statistical and legal evidence that supports this conclusion. In addition, Explanations of the German and Russian environmental regulation and their relative impact on the economic health and growth of their respective sovereignties are given.

Israel, Palestine. Rachel Kilgallen, The Unique Legal Systems of Israeli Settlements. The Israeli-Palestinian conflict is one of the world's most enduring conflicts, the Israeli occupation of the West Bank and the Gaza Strip reaching 55 years. Within Israeli settlements, where Israelis and Palestinians must coexist, an abounding number of controversies have arisen. One such controversy revolves around the legal system adopted within these settlements. Upon Israel's occupation of the West Bank and Gaza (along with the Sinai Peninsula and Golan Heights) in June 1967, the Israeli military immediately established military courts in both territories in order to try offenses harming security and public order. Technically speaking, Israeli military and civilian courts hold "concurrent" jurisdiction to try Israelis for offenses related to security. The policy for the last four decades, however, has been to refrain from prosecuting Israeli civilians in the military system, despite critiques that doing so constitutes partial annexation of occupied territory. The result is that Israeli and Palestinian neighbors accused of committing the very same crimes in the very same territory are arrested, prosecuted, and sentenced in drastically different systems—each featuring staggeringly disparate levels of due process protections. The International community seems to be in concurrence that Israel's actions regarding its settlements violate international law on many levels. At this point in time, all measures taken against Israel, in consequence, have been in vain. The longstanding conflict between Israel and Palestine endures.

United States, Germany. Samantha Rapping, The Psychological Toll of Being Prosecuted as an Adult: A Comparative Analysis of Juvenile Prosecution and Incarceration in the United States and Germany. The United States has one of the most complex criminal justice systems, which significantly differs from other systems in the world, specifically Germany. One prominent difference between these two countries is how they handle juvenile offenders. The United States focuses merely on punishment and incapacitation, whereas Germany focuses on education and rehabilitation. As a result of the harsh treatment that juvenile offenders endure, such as frequent sexual and physical abuse, their mental health severely plummets. Juveniles are at a higher risk for suicide, depression, and anxiety. As a consequence, juvenile offenders are likely to re-offend post-release. Germany’s recidivism rates are extremely low as a result of the educational approaches and opportunities that are available to juvenile inmates such as therapy, metalworking, farming, etc. The positive reinforcement that occurs while juveniles are incarcerated leads to an increase in a juvenile inmates overall attitude and positive outlook for the future. The United States should adopt Germany's educational approach to its juvenile offenders.

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Students: If you spy any errors here, don't hesitate to contact me for correction. If you were in this class and I failed to include you here, that's because I don't have an abstract from you. Please send one, and I'll be happy to add it.

Publishers and employers: Contact me if I can help put you in touch with any of these promising law students, some of whom are now recent grads!

Flags from Flagpedia.net.