Comparative law students explore world with guests, online cohort, and enrich field with new research

Boasting about the accomplishments of my students is a rich indulgence I selfishly embrace. The Savory Tort hosts collections of student abstracts from past courses in Comparative Law and Freedom of Information Law.

This winter, I am happy to share abstracts from students who completed papers in Comparative Law in fall 2025. These might be the most scholarly capable set of papers I've yet seen in a seminar. Their work was a pleasure to read, and I am grateful for all that these students taught me.

Besides their research projects, these students participated vitally in the Global Law Classroom (GLC). They were leaders in their groups and exchanged knowledge and experiences with students from 13 countries over eight weeks of class sessions with contributing faculty.

The students also served as a gracious and inquisitive audience for several guests in the fall semester. I thank my colleagues who gave of their time and expertise to enrich our class:

• Anna Conley, Cliff Edwards Professor of Excellence in Trial Advocacy at the Alexander Blewett III School of Law, University of Montana, and also a member of the GLC faculty, joined us via Zoom to explore customary law and the rights of indigenous peoples.
• Bernard Freamon, professor of law at Roger Williams University Law School, and co-chair of the Bristol (R.I.) Middle Passage Port Marker Project, treated us to a thorough and thought-provoking introduction to Islamic law.
• Dan Greenberg, Cato Institute, shared with us a special screening of the documentary film he produced and directed, American Libel (2025), in relation to the disparate "actual malice" and "public interest" defenses to defamation in U.S. and UK law.
• Wojciech Jarosiński, founding partner of Peak Legal in Poland, and Stefanie Chiba, a corporate attorney and data privacy expert in Austria, led us via Zoom in exploration of differences between civil law and common law practice.
• Ferhat Pekin, attorney with Pekin Bayar Mizraha, and adjunct professor at UMass Law, led us in a study of Turkish law and exercises in the cross-cultural competence required for transnational law practice.
• A friend and colleague working in the international aid sector joined us via Zoom to talk about the challenges of delivering aid from western sources to conflict areas amid political and cultural challenges on the ground. His identity is not published here to protect his security while deployed in Asia.

Here are the fall's compelling student projects:

Jake Fruchter, Civil Rights in Extra-Ordinary Prosecutions: a Comparative Analysis of Ireland and the United States Trial Rights in Terrorism Prosecutions. The United States is witnessing a growth in domestic terrorism charges. As these cases make their way through state and federal courts, questions arise over what rights and procedures apply. One country with a well established history of prosecuting domestic terrorism is the Republic of Ireland. This history led the Republic to establish a Special Criminal Court with unique rules and procedures for terrorism and organized crime cases. This paper, using a comparative method, compares the Republic’s Special Criminal Court with procedures in the United States at the state and federal level. In particular, the rights this paper analyzes pertain to the right to silence as, protected by the Fifth Amendment to the U.S. Constitution, and the right to a trial by jury and to face your accuser, as protected by the Sixth Amendment to the U.S. Constitution.

Kyle LaMont, Belonging by Blood or Soil?: A Functionalist-Historical Comparison of Italian and American Citizenship Traditions. This paper examines how Italy and the United States have developed their jus sanguinis and jus soli citizenship traditions, respectively, over time. Using a functionalist and historical approach, it compares and analyzes the legal frameworks and the different legal consequences of citizenship for each country. Culturally, Italy has had a long-standing tradition of focusing on citizenship through lineage, which was a core part of Italy’s unification since 1861 and further reinforced with Law No. 91/1992. In stark contrast, the United States primarily uses jus soli and the territory approach of the Fourteenth Amendment to the Constitution. These different approaches to citizenship show how historical, cultural, and economic factors have molded the traditions that each country has embraced. By comparing these different systems, this paper reveals differing understandings of belonging and how both traditions survive in each country today. 

Kennis Levano, Language, Law, and Identity: A Functionalist Comparison of Indigenous Language Rights Protection in Bolivia and Peru. Focusing on the divergent political trajectories since the 1980s, this paper conducts a functionalist microcomparison of the frameworks for indigenous language rights in Bolivia and Peru. The research first establishes the historical and political contexts of both countries. It then provides a detailed examination of the Bolivia legal framework, highlighting recent legislative advancements, key provisions, and their successful implementation and impact in the country. In contrast, I discuss Peru's evolving legal framework, identifying differences and significant challenges in implementation. The analysis uses a functionalist approach to compare legal frameworks, identifying successful elements in the Bolivian model that are absent or underdeveloped in the Peruvian. The study culminates in the proposal of a solution designed to catalyze a significant leap forward in Peru's constitutional recognition of indigenous language rights, mirroring the progress achieved in Bolivia.

John McCauley, The Merchant: The Object of Economic Legislation & Regulation. This paper is focused on the differences and similarities between the U.S. Uniform Commercial Code Article 2 definition of “merchant” and the Egyptian Commercial Code definition of “Trader,” and how those definitions work into other statutes when a dispute arises. The UCC is analyzed according to different jurisdictions within the United States, with jurisdictional splits being noted, particularly around farmers. The topic is introduced with a brief history of each codification effort, how disputes of trade are handled procedurally, and how the courts of each respective jurisdiction interpret their definitions of those who conduct trade. This paper seeks to adhere to critical comparative methodologies and be mindful of the different cultural contexts that lead to the expression and subsequent regulation of one who conducts trade and said merchant’s explicit duties. In essence, this paper seeks to unravel choices of law with policies in mind which lead to the defined terms of “merchant” and “trader,” and who or what is interpreted as falling within and without that category, and what are some of the obligations attached to the merchant status. This paper looks at global market dynamics, and interpretive and legislative fiats, as well as statutory language to conclude who or what is defined as a merchant in the United States and Egypt and why. A commercial code is an expression of what a government believes is the proper way of doing business and thus regulates it, and the merchant or trader is the one who is to adhere to that regulation. With those premises in mind, it is key to look at the similarities and differences in these systems and cultural contexts to examine potential policy goals in enacting such legislation.

Hannah Patalsky, Comparing Mechanisms for Artist Compensation in the United States and the European Union (Taylor’s Version). This paper compares two distinct legal frameworks: the Living Wage for Musicians Act (2024) (LWMA), a bill recently reintroduced in the U.S. House Judiciary Committee, and Articles 18 through 22 of the EU Digital Single Market Directive (DSM Directive). Both of these mechanisms are designed to address the persistent issue of inadequate artist compensatory rights in the era of online streaming. The LWMA aims to establish an “Artist Compensation Royalty Fund” as an economic intervention, which would guarantee artists near-immediate payment through a statutory framework and additional stream of revenue flowing from listener to musician. In contrast, the DSM Directive focuses on member-state involvement in a contractual approach, seeking to balance the relationship between artists, on one side, and labels and agents, on the other. The primary DSM Directive articles of focus in this paper are Articles 18 through 22, which are designed to counteract the power dynamics and inequalities between these groups. This paper examines the benefits of each approach, as well as the limitations and drawbacks. The paper demonstratively applies each framework to the well-known ownership dispute between Taylor Swift and Scooter Braun, demonstrating how outcomes may differ under each mechanism to showcase the practical, real-world applications of these compensatory mechanisms. Fundamentally, this paper compares a statutory and contractual framework to find the best approach to artist compensation. Ultimately, this paper argues that each framework seeks to remedy a different issue in the modern digital and stream-based economy, and that understanding the differences among these remedies is essential to evaluating how legal systems can meaningfully address inherent inequalities and imbalances across the music industry. The LWMA aims to address the problem of insufficient streams of revenue for artists. At the same time, the DSM Directive directly targets any inequalities that may have arisen during the contracting phase that may lead to long-term exploitation of artists. In comparing these legal mechanisms that are addressing the same issue, this comparison reveals not only the strengths and weaknesses of each approach, but also the potential benefits of creating a hybrid model, including fair revenue and fair contracting conditions.

Tamar Shimon, Hate Speech: Overprotected or Undervalued? A Comparative Analysis Between U.S. and German Student Speech on College and University Campuses Post October 7. This paper analyzes the impact of protecting hate speech, particularly antisemitic speech, on post-secondary institutions within the United States and Germany. The world is no stranger to antisemitism. This type of hate has existed for millennia. However, with the events of October 7, 2023, a new wave of antisemitism found a home amongst a new generation of people: young university and college students. For months, U.S. college and university officials allowed for antisemitism to take hold on their campuses, subjugating Jewish students to abuse from their fellow students. But this was not the same response in Germany. Rather than allow the “protests” to become rampant and violent, German university and college officials quickly placed bans and restrictions for fears of antisemitism reemerging at such a drastic rate that was last seen in the 1920s. Free speech is a fundamental right within the United States and Germany; however, both countries take different approaches when it comes to protecting hate speech. This paper explores the differentiations in each country’s free speech rule, specifically focusing on the way in which each country sees the importance of hate speech to its society. To understand this differentiation, the events on and post October 7, 2023, on college and university campuses across the United States and Germany will be analyzed to determine whether the United States can somehow implement Germany’s model but still uphold the values of free speech.

Tryon P. Woods, Indigenous Fishing Rights, Comparative Settler Colonialism, and the Problem of Modern Law. This paper is a comparative legal analysis of United States v. Washington (W.D. Wash. 1974), known as the “Boldt decision” after the presiding judge’s opinion, and the 2024 ruling in Sapporo District Court on the Raporo Ainu Nation fishing rights lawsuit in Japan. Regarded as a legal landmark in indigenous rights and land use management in North America, the Boldt decision recognized the treaty rights of Native tribes to off-reservation inland fishing.  It held that such Native fishing was not subject to State regulation.  The recent Ainu lawsuit in Japan similarly sought to assert indigenous rights to fish Japanese inland waters but was rejected by the court. Comparative analysis of the two cases reveals distinct national histories regarding indigenous rights in law, which in turn, are indicative of differing forms of racialization in the national development of the United States and Japan that align with distinct histories of settler colonialism. This discrete legal comparison raises further questions regarding law’s mutability in the face of dynamic culture; how dominance is reworked as rule of law; and the problems stemming from shared ecology.

Ellie Zhang, Fair Use vs. Second Creation: A Comparative Study of Short-Video Law Between the United States and China. This paper examines how U.S. and Chinese copyright law treat short-video “second creations,” focusing on two common formats: (1) reaction and review videos that intersperse short excerpts and (2) parody. After setting out the U.S. open-ended, fair-use framework under 17 U.S.C. § 107 and China’s rights-first, enumerated “reasonable use” approach under Article 24, the paper asks when these videos amount to protected commentary and when they become unlicensed, market-substituting derivatives. For interspersed-clip reactions, U.S. doctrine tends to credit transformation and lack of substitution, whereas Chinese courts emphasize “reasonable use” and substitution risks; both systems disfavor compilation-style recaps. For parody, U.S. law treats targeted critique as paradigmatic transformative use so long as the borrowing is reasonably necessary and does not usurp cognizable licensing markets. By contrast, Chinese law lacks an explicit parody exception, channeling analysis through “appropriate quotation,” the two-step constraints, and moral-rights concerns, producing a narrower space for unlicensed parody. The paper closes with practical guidance for creators and a policy recommendation: clearer, semi-open exceptions in China and more attention in U.S. cases to audiovisual modes of critique when judging transformation and necessity.

The students' research was well supported by ace Law Librarian Katelyn Golesby, who updated and reconstructed a superb library guide in foreign, comparative, and international legal research.

Lead image by Google Gemini. Guest images from respective biographical pages, as linked; no claim to rights. Flags by Flagpedia.

Law students test-screen 'actual malice' documentary

Yesterday, my students in Comparative Law and in Torts got to be test-screen audiences for American Libel, a new documentary written and produced by my friend and colleague Dan Greenberg (TST), a senior research fellow at the Cato Institute.

American Libel challenges the policy wisdom of the "actual malice" rule in U.S. First Amendment law. The rule requires, in key part, that public-figure and public-official defamation plaintiffs prove by clear and convincing evidence that the defendant wrote with actual knowledge of falsity or in reckless disregard of the truth. The rule originated in the landmark case New York Times Co. v. Sullivan (U.S. 1964), and subsequently was rejected by other liberal-democratic jurisdictions, such as Canada and the United Kingdom, as insufficiently protective of personal reputation. The film assigns blame in part to Sullivan for our present misinformation epidemic and the collapse of public confidence in journalism.

Greenberg garnered student feedback and led fruitful discussions with students after two showings, morning and night. I am grateful to Greenberg for taking the time to visit us in Dartmouth, Mass., and share his work. And I am grateful for my students who devoted three hours to screening and discussion, asked informed questions, and offered full-hearted and thoughtful critique.

The screenings were a tremendous learning experience for all of us. It's fair to say that everyone looks forward to American Libel reaching general audiences.

You can read more about American Libel at the film's website. My students prepared by reading my "Reconsidering Sullivan" in 2 Tortz (2025 ed.) (free download at SSRN), pp. 516-535. Comparative Law students also read excerpts on Australian and Canadian law from Marie-France Major, Comparative Analogies: Sullivan Visits the Commonwealth, 10 Ind. Int'l & Comp. L. 17 (1999), and Jessica Lovell for INFORRM (2019) on the UK "public interest" defense.

Podcast features legal ed collab in 13 countries

On October 1, colleagues and I will start a new eight-week run of the Global Law Classroom (GLC), and program leader Professor Melanie Reid has published a GLC podcast.

The GLC uses Zoom to bring together students and faculty around the world to study issues in international and comparative law. Students work in geographically diverse breakout groups, so get to know their counterparts from other countries. I've wrote here at The Savory Tort about the GLC in 2024, and colleagues and I discussed the project at Global Legal Skills conference in Brno, Czechia, in May 2025.

Professor Reid, at the Duncan School of Law, Lincoln Memorial University, conceived of the GLC when Zoom became instrumental to legal education in the pandemic, and has led the initiative since. This year, Professor Reid recorded a podcast to go along with the GLC, Beyond the Global Law Classroom. The podcast comprises 22 episodes, each an interview with a GLC faculty member to learn more about the perspective from that person's legal system and personal experience.

Professor Reid kindly featured me and The Savory Tort in episode 14. 

This year's GLC will welcome students and faculty from China, France, Germany, Hungary, India, Italy, Lithuania, Mexico, Poland, Portugal, Spain, and Turkey, besides the United States. My Comparative Law class will participate from Massachusetts. 

Our subject-matter units include global lawyering, environmental law, human rights, criminal law, security and energy law, artificial intelligence, and negotiation. For the faculty, I have served as coordinator of the environmental law team, and as a member of the human rights team, developing curriculum for those units.

Global collab promotes teaching law without borders

Peltz-Steele, Lewinbuk, Rott-Pietrzyk, Kim, Rigó
© Used with permission

Collaborators and I had the privilege of discussing the Global Law Classroom (GLC) at the 17th Global Legal Skills Conference (GLS 17), hosted by the Global Legal Skills Institute and the Faculty of Law at Masaryk University (MUNI Law) in Brno, Czechia, last week.

The GLC is a collaboration of faculty around the world to bring together students across borders, via Zoom, to study international and comparative law and learn from each other. I wrote about the GLC here at The Savory Tort about a year ago, after a 2022 pilot run and just before we executed the first official program over eight weeks in fall 2024. I used the GLC as a one-credit component of my Comparative Law class, and I will again in the upcoming fall 2025.

© Used with permission

© Used with permission

In presenting on the GLC to our GLS 17 colleagues in Brno on Thursday, we provided a demonstration hypothetical in data protection for attendees to discuss in small groups. I developed the fact pattern initially with Cristina Blasi Casagran, Autonomous University of Barcelona, and we used it in the fall 2024 GLC human rights module to demonstrate divergence in U.S. and EU approaches to privacy.

For GLS 17, I created a video narrative (below) and briefed the audience on the salient doctrine of the respective legal systems (inset below video) (both CC BY-NC-SA 4.0).

RJ Peltz-Steele CC BY-NC-SA 4.0

The GLC is the brainchild of Melanie Reid, Lincoln Memorial Law, who could not join us in Brno, but will lead a discussion of the project later this summer at the annual conference of the Southeastern Association of Law Schools (SEALS).

The GLC faculty team in Brno was led by Rosa Kim, Suffolk Law, and also comprised Katerina Lewinbuk, South Texas College of Law; Balázs Rigó, Eötvös Loránd University (ELTE) (Hungary), and Ewa Rott-Pietrzyk, University of Warsaw (Poland). It was great fun for the five us to be together IRL after so much labor together on Zoom.

I'll have another report from GLS 17 here at The Savory Tort on Wednesday, June 4.

Comparative law research reaches prisoner rights; women's rights; tech patents; internet, drug reg

Law Offices of James L. Arrasmith CC BY-NC 4.0

In fall 2024, I had the privilege of teaching Comparative Law for the sixth time.

For my time and energies, the course is the best one to teach, because it offers the best opportunity for a lifelong learner. Law teaching usually requires mastering a broad and deep range of content so that one can guide students capably through it. Not so in Comparative Law, in which the teacher cannot possibly know the substantive content of all of the legal systems of the world. Rather, the course is about arming students with the tools of comparative methodology, and then savoring the opportunity to learn from them, what they find in their own research.

This year was not lacking in the savory. As I have in the past, I am proud and pleased to share a collection of abstracts representing the yeoman work of my students in the fall semester. You will see that the students devised some wonderfully innovative theses. The subject matter that researchers tackled spanned prisoner legal rights, marijuana and gambling regulation, black women's representation in the legal profession, women's rights in Afghanistan and in Dutch sex work, semiconductor patents, and regulation of online misinformation.

Alayna Wageman, Prisoners Are Human Too: A Comparative Analysis of Prisoners' Right to Legal Assistance in Chile and the United States. Both Chile and the United States guarantee, through their constitutions, the right to legal counsel for individuals who cannot afford a lawyer during criminal prosecutions. However, prisoners lack resources to access legal assistance when their basic human rights are violated while incarcerated. This project seeks to show how the extreme traumatization of citizens in the United States from the years of slavery and the extreme traumatization of citizens in Chile from the years of dictatorship continue to impact the treatment of prisoners today. This paper begins with an overview of the history of slavery in the United States, specifically in Massachusetts, and an overview of the history of dictatorship in Chile. Next, the paper will explain the laws that define the right to legal assistance for prisoners in Chile and Massachusetts. Finally, the paper compares two programs designed to improve prisoners' access to legal resources: the Prisoners' Legal Services (PLS) of Massachusetts in the United States and the Penitentiary Defense Program (Programa de Defensa Penal Pública Penitenciaria) in Chile. This analysis demonstrates how the influence of the historical extreme traumatization of societies continues to impact the treatment of prisoners in both countries, with focus on the limitation of access to legal assistance in prisons. The paper concludes by acknowledging the efforts of the PLS and the Penitentiary Defense Program, which are working to further protect the rights of prisoners.

Bryce Mayo, Comparing the Impact of Sports Gambling Advertising: A Legal Exploration of the United States and Australia. The recent legalization of sports gambling has taken the United States by storm, and as a result, an influx of advertising has taken over every commercial break. Sports fans, avid and casual viewers alike, cannot help but notice sportsbooks like BetMGM, FanDuel, and DraftKings attempt to entice an already invested community into raising the stakes of a game or match. These companies use tactics such as celebrity endorsements, sign-up promotions, and "can't lose bets" on your first wager. This paper compares how the United States and Australia have approached the regulation of sports gambling advertising since its legalization in 2018 and 1983, respectively. Although both countries follow the common law system, the legalization of sports gambling came about in drastically different ways. The United States struck down a longstanding congressional act, while Australia codified sports gambling, even making the first sportsbooks state owned and operated. Recently, Australia has issued licenses to private or publicly owned sportsbooks and their advertising regulations have changed as a result; whereas in the United States, private and publicly owned sportsbooks are the primary recipients of licenses, yet the regulations mirror that of Australia in 1983. Legalizing sports gambling in the United States is in its infancy, and growing pains are inevitable. It appears to be the wild west, quite reminiscent of tobacco advertising in years past. The United States can learn from Australia's experience and seek a balance between maintaining a profitable market and minimizing the creation of degenerate gamblers.

Carson Powell, Quality Over Quantity: A Comparative Analysis of Marijuana Quality Control Regulations Between the Netherlands and the United States. This paper compares the law and regulations of the United States and the Netherlands, on the regulations that are used to ensure the quality of marijuana sold legally. First, the paper focus will be on the Dutch marijuana policy, and its past, current and future regulation protecting the quality of the marijuana sold in "coffee shops." Next, the focus will shift to the United States and specifically Colorado regulations when testing the quality of marijuana. The paper views policies implemented to ensure quality and safety within the production, testing, distribution and the sale of cannabis/marijuana products. Finally, the paper compares Netherlands regulations on marijuana quality assurance and with Colorado laws and regulations that establish the safety of state citizens. The paper compares the laws and regulations, how they relate to each other, and the social results. The paper concludes with recommendations based on the comparisons drawn from the two parties, and whether each can become more effective and efficient with its own processes.

Kennia Joseph, A Comparative Analysis of Gender and Racial Equality for Black and Nigerian Women in the Legal Profession. This paper compares the laws in the United States and Nigeria that address gender and racial equality and their effect on black and Nigerian women in the workforce, specifically in the legal profession. One of the key issues in ensuring gender equality in employment lies in enforcing existing laws and policies. The comparison between Title VII of the Civil Rights Act and the overturned affirmative action practices thereunder, Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the failed Nigerian Gender and Equal Opportunity Bill of 2016 highlight underrepresentation in the legal field. Despite developing systems to support and encourage race and gender equality, black women from different cultures, and political, societal, and economic climates share experiences in the same profession with similar laws, initiatives, and policies.

Nick Saathoff, A Comparison Between Patents on Semiconductors in Germany and the United States. Patent law in Germany and the United States protects those who invent or discover patentable processes. Ideologies between the two countries differ in the field. In the United States, a patent is mainly a monetary protection. In Germany, in addition to monetary protection, there is an honor and prestige associated with inventing. This paper discusses patent law in each country specific to the field of semiconductors. Semiconductors are one of the most technologically significant patentable items in the world today. The paper initially provides an overview of patent law in each country and what role semiconductors play. This paper identifies similarities and differences between patent protections, patent quality, and patent strategies in the United States and Germany. In doing so, the paper discusses key requirements of obtaining a patent. The paper discusses one requirement at a time, discussing the interpretation in the United States and the interpretation in Germany. The paper then notes patent statutes in each country specific to the semiconductor industry. Additionally, the paper will discuss nuances in each country’s patent laws in the semiconductor industry.

Rebecca Stump, A Comparative Look at Sex Work in the United States and the Netherlands. Sex work, historically, has been a controversial occupation for a variety of reasons, including religious beliefs, women’s rights, bodily autonomy, and the extent to which the state should regulate an individual's choices over their own bodies. During this period, sex work has been considered a shameful profession, one which must be criminalized to deter human trafficking or coercion. However, as understanding and advocacy for bodily autonomy and freedom to self, and countries such as the Netherlands reform and change their sex work laws, there are movements for change to law in the United States. The aim is for a discussion, through comparison of the legal systems of Nevada and the Netherlands and the main avenues for reform, partial decriminalization and full decriminalization or legalization, the social and legal implications of legalization of sex work to further investigate reform in the United States. Within research regarding sex work, there are critical biases that must be acknowledged prior to engaging in discussion. First, and foremost, is the moral and ethical considerations of sex work. Sex work is not merely seen as an occupation free from moral implication, but an occupation for which every person may offer their individual consideration as to the ethical value of the work. To engage in substantive discussion, morality must be stripped away. Instead, one must be willing to engage in discussion solely on the legal ability of an individual to make a choice regarding the services they offer using their person, and the role of the state in legislating that decision. To that point, a discussion regarding the legality of sex work is necessarily a discussion of the extent to which the state should regulate labor. There exist various viewpoints as to the question of federalism and the role of the state to regulate. This bias must also be considered.

Sean Pillai, Afghan Women's Human Rights: A Legal Analysis of Constitutional Governance vs. the Taliban Rule. Afghanistan’s history of political turbulence and violent turmoil have repeatedly challenged the legal and social status of women. Afghanistan attempted to rebuild as a democratic nation and included rights to protect women. Under the 2004 constitution, women gained significant legal rights, such as access to education, safety and freedom of movement and employment opportunities, marking a stark contrast to the Taliban's earlier reign (1996-2001). However, the progress made was curtailed with the withdrawal of U.S. forces in 2021 and the Taliban return to power. This analysis will address the shift in legal protections and the impact on societal roles for women contrasting the two eras: the 2004 constitutional government and the Taliban regime 2021 to present. By comparing the legal frameworks and implementation of women's rights in key domains such as women's access to education, safety and freedom of movement, and women's access to employment, this paper seeks to provide an understanding of the impact the two legal systems have on women.

Shiloh Worthington, The Digital Services Act vs. Section 230: The Western Hemisphere's Battle Against Misinformation. The European Union and the United States have both recognized the disparate effects of rampant and unchecked misinformation spreading across the internet. However, each has a distinct approach to combatting this epidemic of troublesome content. The EU battle against misinformation is best exemplified by the recently passed Digital Services Act (DSA), which places the primary responsibility of stopping the spread on the platforms themselves. Meanwhile, in the United States, the struggle to fight misinformation is at odds with the First Amendment rights of the platforms. Section 230 of the Communications Decency Act offers platforms total immunity for their misinformation content-removal practices, no matter how it conflicts with individual freedom of expression. Further conflict arises as the EU's DSA attempts to force American-based platforms with European audiences to comply with its content-removal practices under misinformation-related pretenses, even if doing so would remove American citizens' content otherwise protected by the U.S. Constitution.

Watch for these students on upcoming bar pass lists in a state near you!

Flags from Flagpedia, except Afghanistan Taliban from Wikimedia Commons, all public domain.

Law class visits Constitutional Court of Portugal

Law students and Dean Sam Panarella (left)
visit the Constitutional Court. © RJ Peltz-Steele

Since last week, ten talented U.S. law students have been making the most of Lisbon, Portugal, in UMass Law's first class abroad.

In our maiden venture, we are studying comparative data protection law in the United States, European Union, and Portugal. We have been treated to superb lectures by law faculty of our partner institution, the Universidade Católica Portuguesa (UCP).

Today, a UCP faculty member welcomed us to the home of the Portugal Constitutional Court, where he also serves as Vice-President. Justice Gonçalo de Almeida Ribeiro spoke to us there about constitutional conflict in the EU legal system.

The justice had instructed students to prepare by reading Digital Rights Ireland, a 2014 case in the EU Court of Justice (CJEU), and the "Metadata Ruling," a 2019 decision of the Constitutional Court of Portugal. In Digital Rights, the CJEU had struck down an EU directive on data retention as inconsistent with fundamental rights under the European Charter. 

Justice Gonçalo de Almeida Ribeiro addresses law students.
RJ Peltz-Steele CC BY-NC-SA 4.0

The case marked a recognition of the CJEU's own power of judicial review. But it also raised a confounding question. The CJEU lacks authority to review national legislation directly. So what would become of national, domestic laws that had been enacted already pursuant to the stricken EU directive? 

The Portuguese Constitutional Court in Metadata construed Portuguese constitutional law in harmony with the EU Charter to strike down as well the problematic provisions of Portuguese law that had been enacted pursuant to the directive. The responses of the Portuguese and other national constitutional courts to Digital Rights thus marked a pivotal point in the evolution of the EU's peculiar brand of "federalism" (to jam a square peg into a round word).

All of the law students in the class deserve praise for being good-natured and flexible in the face of a fluctuating itinerary for this fledgling Portugal project. They all assert, nonetheless, that they are here first and foremost for this remarkable learning opportunity, and not for myriad other benefits, for example, to see Taylor Swift at Benfica Stadium at what are by U.S. standards bargain ticket prices. That was icing.

UMass law students with me at Universidade Católica Portuguesa
© Prof. Sofia Pinto (licensed)

 

Global Law Classroom unites law students online

Law faculty around the world are organizing the Global Law Classroom to debut in the fall semester of 2024.

Global Law Classroom (GLC) brings together law students from participating countries via Zoom to study and discuss contemporary issues in comparative and international law. GLC started as a project of the European Legal Practice Integrated Studies program (ELPIS), under the EU Erasmus umbrella. 

The program was conceived and is coordinated by Melanie Reid, associate dean of faculty at the Duncan School of Law, Lincoln Memorial University. I've participated on the plenary faculty and as contributing faculty on the environmental law team and human rights team, developing academic modules in those areas. My students in three-credit-hour Comparative Law in the fall will participate in the GLC for one-third of their class-hours.

Besides human rights and environmental law, modules include criminal law, cybersecurity, anti-discrimination, and artificial intelligence, as well as an introduction to global lawyering and a negotiation exercise on climate risks.

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.

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.

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