UEFA-FIFA football war spills into U.S. courts as European lawyers wield discovery 'superpower'

A powerful American legal tool is a weapon of choice in a brewing legal battle between two of the world's most powerful transnational sporting organizations.

Soccer might not be on the minds of Americans on a daily basis, but that won't stop the global corporate landscape from shifting under our feet as two behemoths of football governance wage world war on one another. Battles in that war erupted in three U.S. federal courts at the end of August.

RJ Peltz-Steele with Google Gemini CC0 1.0

UEFA, the governing body of football in Europe, filed ex parte applications in U.S. courts on August 27 with expansive discovery demands in anticipated litigation against world-governing FIFA. FIFA fought back last week with counter-filings as a would-be intervenor. Dirty laundry is close to spilling out, and the mechanism making it possible is a section of the U.S. code that bestows on foreign lawyers a "little-known superpower."

First, some context. Americans might remember from the waning days of the World Cup news cycle—and thus the waning days of Americans caring about soccer, despite the summer hype, and owing significantly to the self-inflicted wound of allowing profit-thirsty NBC to fragment Premier League matches across disparate network bundles, but that's another story—that FIFA chief Gianni Infantino, apparently intoxicated by the refined air inside his mega-millionaire bubble, proposed selling shares in the people's game to private investors. 

The proposal was akin to a company going public, except not at all public and, being above the laws of nations, hardly regulated. After schmoozing States-style, Infantino wanted to do his part to firm up the global wealth gap and to locate himself at its rich-ward extreme. No joke: Infantino's vision looks like it was modeled on President Trump's Board of Peace, with which Infantino's FIFA in fact formally partnered. Infantino would have set himself up as the head of a World Cup company, sidestepping the inconveniently quasi-democratic and term-limiting features of the FIFA presidency, and shaking down private investors and member associations for minority stakes.

There apparently is some limit to what even the supra-national, mega-rich can do, as Infantino's plan drew worldwide rebuke. Of course there was objection from watchdogs, such as Reboot FIFA, a campaign I signed on to that holds out hope for socially responsible sporting governance and issued a July statement condemning the Infantino plan. But tellingly, FIFA's member associations led the chorus of boos; UEFA pledged a boycott of FIFA. The limit might be when rich people step on the toes of other rich people, because UEFA is no stranger to the profit-engine-masquerading-as-for-the-commoner MO of professional football governance.

Longer memories will recall when Swiss police raided FIFA headquarters in 2015 at the behest of U.S. investigators, and the U.S. Department of Justice filed a 47-count federal indictment in Brooklyn targeting top FIFA brass. Mighty FIFA President Sepp Blatter fell from grace, and it looked for a moment like democracy might be bigger than corporatocracy.

Infantino shows Trump the World Cup trophy in the Oval Office, 2025.
U.S. Government (public domain) photo from the White House

The moment didn't last. It only proved the old adage, cut the head off the hydra, and two more take its place. Infantino inaugurated a new era of next-level corruption. Of course, the U.S. prosecution had been motivated in part by the FIFA hijinks that saw the U.S. bid for the '22 World Cup founder in the face of Qatar's, let's say, "procurement." The '26 World Cup was our payoff. Washington meanwhile changed lanes to go all in on pay-to-play, and FIFA awarded President Trump his personally tailored Peace Prize. Plutocratic order was restored.

Infantino backed off of the private-investment plan. Yet hell hath no fury like a sporting cartel scorned. UEFA persists, demanding that FIFA oust Infantino and threatening legal action. 

Meanwhile, because there's a grain of truth to the offensive assumption that all rich people know each other, there's a U.S. connection to the FIFA scandal that runs even deeper than Trump and Infantino's mutual social grooming. New York-based Thrive Capital, a venture capital firm, was set to pour $4.2 billion into Infantino, Inc. And the co-founder and soul of Thrive Capital is Joshua Kushner.

You think I mistyped Jared Kushner, the President's son-in-law who solved the Middle East. No. Josh is the other Bennet sister, an entirely different offspring of tax fraud, etc., convict Charles Kushner. Not that I'm judging a book by its author; a billionaire deserves a chance to write his own story.

Since the Infantino deal went up in glorious flames, Josh Kushner has tried to distance Thrive and himself from it. He says he never would have gotten involved had he known, and that he thought the deal would funnel more capital to promote socioeconomic development. Shoulda coulda woulda.

Well, UEFA wants to know more about that. Which is why its breathtaking range of documents filed in the U.S. District Court for the Southern District of New York includes, very much inter alia, a proposed subpoena for the deposition of one Joshua Kushner.

RJ Peltz-Steele with Google Gemini CC0 1.0

The legal tool at the heart of the UEFA filings is 28 U.S.C. § 1782. The law opens up the discovery process of U.S. civil procedure for litigants in other countries to access records and to depose persons in the United States. Though section 1782 is implicated here, as it usually is, in connection with business disputes, it can be used just as well in ordinary tort litigation, from fraud to personal injury. 

This is important, because U.S. discovery is famously more expansive than production in other legal systems. Fittingly, U.S. civil procedure takes a sort of free-market approach to discovery, upon a truth-will-out philosophy. The system, articulated in the relevance-and-proportionality standard of Rule 26(b) of the Federal Rules of Civil Procedure, does not grant carte blanche for fishing expeditions, especially since 2015 amendment tried to rein it in a bit. But it goes a lot farther than the they-didn't-ask-so-don't-tell approach that is the norm in Europe.

Section 1782 on its face requires that (1) the domestic respondent can be found in the U.S. district in which discovery is sought, (2) the discovery is for use in a foreign or international tribunal, and (3) the section 1782 requester has an interest in the foreign proceeding. The statute won some notoriety in 2022 when the U.S. Supreme Court resolved a circuit split by deciding that arbitral panels are not eligible tribunals under the second element.

Section 1782 compliance by U.S. district courts is discretionary, not required, by the statute. So the U.S. Supreme Court in 2004 set out factors to guide court discretion: (1) whether the domestic respondent is subject to the foreign proceeding, so discovery might rather be sought against the respondent there; (2) whether the foreign tribunal is receptive to U.S. court assistance; (3) whether the requester is trying to circumvent an intended limitation on discovery in the foreign system; and (4) whether the request is especially intrusive or burdensome. The third factor especially tends to be a contested point, and it is sometimes difficult for U.S. courts to find the line between a foreign limitation on discovery by design and the mere happenstance that the foreign discovery system is more conservative than the U.S. system.

In a 2020 empirical study, Penn Carey Law Professor Yanbai Andrea Wang concluded that section 1782 is an "increasingly pervasive practice that is transforming civil litigation worldwide." With 90% of ex parte 1782 requests granted, Wang found that the law raises due process concerns. Potential adversaries in the home litigation are not always given proper notice of their right to intervene in the United States and object to the discovery. In the instant matter at least, the 1782 petition is part of UEFA's public relations strategy. And FIFA had no trouble intervening in New York and mounting a public relations offensive of its own, accusing UEFA of a "smear campaign." 

Properly employed, section 1782 does open the door for a foreign actor to poke around in the business of an adversary or potential adversary, to bolster a legal theory back home, in a way that it could not without the U.S. hook. Sometimes what the requester can discover with the aid of U.S. law is valuable enough to shift public opinion or a case on its merits so significantly as to obviate or dispose of the matter back home. It's not a stretch to figure that UEFA hopes to find Infantino-Kushner correspondence so damning or embarrassing as to compel Infantino's ouster.

Watching the battles unfold in UEFA vs. FIFA, and In Re Union Des Associations Europeennes de Football (S.D.N.Y. filed Aug. 27, 2026) in particular, is a bit like being on a rowboat between battleships. But the stab at arrogant corporate impunity, even if thrust by a fellow titan, is nonetheless prone to induce a satisfying schadenfreude, especially if UEFA can bring Infantino down.

RIP, football transparencist Andrew Jennings. Your mouth would be watering.

Belgian scholar publishes magisterial deep dive into comparative data privacy law across Atlantic

Dr. Sylvia Lissens has published her remarkable dissertation in comparative law as a book, Personal Data Protection in the United States and the European Union (Larcier-Intersentia 2026).

Here is the publisher's description:

In today’s digitized world, personal data is being requested and collected everywhere. With the emergence of the internet and devices that are connected to the internet, such as smartphones, smartwatches or even smart fridges, the collection of personal data has expanded to an unprecedented scale. Personal data flows between the European Union and the United States are occurring on a daily basis, since most U.S. big tech companies sell their devices and offer their services in the EU. Successive deals were made in order to protect citizens’ personal data, but most of them did not survive scrutiny by the Court of Justice of the European Union.

Upon closer inspection, the underlying problem appears to be the different qualifications and frameworks used for personal data (protection) in the EU and the U.S., defining it respectively as a fundamental (human) right and a trade asset. This book addresses the question of what the core differences between the U.S. and EU legal approaches towards personal data (protection) are, where they come from, and whether there are signs of convergence. Functional comparative law research is conducted on three levels to reflect the perspectives of the three main stakeholders: the private sector, civil society and the public sector, focusing on intelligence and law enforcement agencies.

The U.S. and the EU seem to understand and qualify personal data differently in words and deeds, but upon closer inspection they have more in common than may seem at first sight. The findings in this book confirm that it is possible to develop a roadmap for the U.S. and EU legal approaches towards data privacy to coexist, and that convergences can be found at the level of the private sector, civil society, and the public sector intelligence and law enforcement agencies. Data privacy principles developed in different parts of the world and by several organizations share many elements in common. It is time for actors and regions to decide to cooperate and engage in mutual understanding, as the internet does not know any borders in a globalized world.

Dr. Sylvia Lissens is a legal scholar specializing in data protection, international data exchange, and the intersection of technology, security and fundamental rights. Holding master’s degrees in Law and Criminological Sciences, she conducted doctoral research on EU–U.S. data protection and international cooperation at KU Leuven. Through collaborations with the University of Helsinki, Venice International University, Duke University, and the Jagiellonian University of Cracow, she developed expertise in cybersecurity, policing, counterterrorism, and the legal implications of emerging technologies.

The work is magisterial: an astonishingly comprehensive and insightful survey of the history and cultural context of data privacy on the two sides of the Atlantic, unlike any resource before it. I was immensely privileged to learn from Lissens as an adviser from the U.S. side in her work, and as a member of the committee for her defense at KU Leuven in Belgium in 2025. A hat tip to the indispensable support for Dr. Lissens of her significant other, the multi-talented Giovanni C., and to my friend, colleague, and fellow adviser, Professor Przemysław Pałka, Jagiellonian University.

As gratifying a culmination of achievement as this book is, I am even more thrilled to report that Lissens soon will start work as a lawyer and data privacy officer for the Belgian federal police agency. Watch this space for great things to come.

French law students embrace common law; Le Havre confronts modern environmentalism, slave history

Le Havre, France

Our cultural and legal understanding of reputation and privacy are among the countless features of the social contract undergoing rapid evolution in the Trump political era, in Europe as well as the United States.

(All images by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying content.) 

Once a fringe area of tort law to which most new lawyers had no exposure at all in law school, defamation and privacy have taken center stage in society, in part thanks to their weaponization in polarized politics and popular culture. Hulk Hogan famously shut down Gawker with a multi-pronged privacy suit masking a billionaire's vendetta (Holiday). Melania Trump sued a blogger and the Daily Mail for falsely claiming she worked as a high-end escort (DiBenedetto). And Donald Trump, well, Donald Trump... inter alia, won a fee award and suffered a massive loss, not over sexual relationships as much as deceptions that ensued.

Faculty of International Affairs, University of Le Havre

Last week, I had the great privilege to teach a one-credit course on American litigation over defamation and privacy to undergraduate law students at the University of Le Havre in the Normandy region of France. You can check out the course and course materials at the blogspot, Litigating Reputation in America. I'll leave the downloadable documents in place for the duration of summer 2026 (Perma.cc for later review).

"Litigating Reputation in America" course site

I centered the class on the fascinating transnational defamation civil suit that French President Emmanuel Macron and his wife Brigitte Macron are prosecuting in Delaware against American podcaster Candace Owens. The case arises from a host of Owens's sensationalist assertions, especially that Brigitte Macron was born a man. A hearing on a motion to dismiss, on jurisdictional grounds only, is scheduled for June 22.

Notwithstanding the seemingly readily disprovable falsity and outrageousness of the assertions at issue, the Macrons face an uphill battle in U.S. courts. Kalshi thinks they'll win (63.7% presently). But the smart money in American defamation litigation is never on the plaintiff. Cf. Tucker Carlson's successful defense against Karen McDougal on grounds, more or less, that no one takes Carlson seriously, so his outrageous assertions could have done no harm.

Meanwhile, in January, a French criminal court convicted 10 defendants of cyberbullying Brigitte Macron with the born-a-man claim (CNS). The contrast between an uphill civil suit in the States and criminal prosecutions in Paris fairly indicates a profound divergence in how social, economic, and political cultures in the United States and Europe, especially in France, respectively value reputation and free speech, and how law and process accordingly balance the two.

In an intensive 15 classroom hours, 24 Le Havre students learned the fundamentals of defamation and privacy torts and engaged with 11 contemporary, ripped-from-the-reporter case studies I prepared for them. The students explored the development of defamation and privacy litigation from client counseling to discovery and dispositive motions, alongside key rules of civil procedure. They argued Rule 12(b)(6) motions to dismiss and negotiated settlements, then rounded out the week with a two-hour final exam.

Civil-law law books, including obligations, at La Galerne Bookstore, Le Havre

I've been teaching American law modules to English-as-a-second-language law students in Europe for 20 years, and never have I seen students perform so well. They embraced the rough-and-tumble of the American adversarial model, while remaining sensitive to issues of professionalism and public policy. True to European thinking, they evinced skepticism of corporate-protective defense doctrines and absolutist free speech claims. They readily adapted their civil-law-trained thinking to precedent-driven common law and analogical argument.

It happened that the well circulated American news story dropped while I was in France, as Futurism put it, "College Professors Say Incoming Students No Longer Understand Middle School Math and Science." I commented on some of my friend chats that the same surely is true for English and arts; it's just harder to quantify.

When I started teaching legal writing in the late 1990s, the challenge was to get students to pay attention to their choices of subjects and verbs. Now many students don't even know what I mean when I say "subject" and "verb." An aside: Shout out to my own relentless K12 grammar instructors: Sharon Reuwer, who in elementary school literally hit me on the head with a book—you could do that back then—until I got my sentence diagramming right; and to Dr. Barbara Dezmon, who in middle school initiated me in language as forensic art, more than mere mechanics.

So as my undergraduate French students dissected their case studies, synthesizing argument from facts and points of law, I could not help but observe, and wonder why, they delivered work product more adeptly than I can expect from most first-year graduate students in the United States. That's not to impugn my home students' potential, nor to generalize unfairly, nor to disrespect those who put in the work and rise to the occasion, but only to fear that too many Americans are inexcusably ill served by their K16 preparation.

Haropa Port offices, Le Havre

I am deeply indebted to the organizing and teaching faculty of the Le Havre program. Professor Baptiste Allard is the driving force behind the program at the University of Le Havre Faculty of International Affairs, along with his Le Havre collegaue, Professor Pierre Capelle. The students are now in week two of the four-week program, in a comparative study of constitutional and administrative law with Professor Akram Faizer of the Duncan School of Law at Lincoln Memorial University.

In the coming weeks, the French students will further explore American law and legal skills with Professor Christine E. Cerniglia, director of clinical and experiential legal education at Stetson Law, and Professor Melanie Reid, associate dean of faculty at the Duncan School of Law. Professors Cerniglia and Reid aim to develop an ongoing relationship with Le Havre that will see American students participating, too, to exchange learning with their French counterparts.

Catène de containers (2017),
a prominent contemporary sculpture by Vincent Ganivet;
behind: post-war apartments in the brutalist architectural style of Auguste Perret

I had some time in Le Havre for tourism, which afforded me the opportunity to explore some scholarly interests in areas including environmental law and the legal history of human rights and the transatlantic slave trade.

Professor Allard is my partner on the environmental law team of the Global Law Classroom, a project born of Professor Reid's ingenuity. I have learned volumes from Professor Allard about the role of global shipping and sea transportation in global environmental law and climate change. Admittedly, there are times when the ins and outs of EU shipping regulations make my eyelids droop. But in Le Havre, I took a boat tour of Haropa Port, and what I saw there charged the subject with a new vitality for me.

Entrance to Port of Le Havre

I've seen many commercial ports in the world, but never so close, gliding on a small passenger boat through an intracoastal waterway alongside massive tankers and container ships. The Port of Le Havre is the largest container port in France, with three terminals, and also receives world-class cruise liners. Oil is the port's number one cargo commodity, implicating the port in contemporary geopolitics. Seeing the scale of the operation, it's impossible not to wonder at humanity's ability to transform a natural landscape to commercial ends, and also to be fretful over environmental risks and consequences.

Kriti Journey, a crude oil tranker, flagged Marshall Islands

Hafnia Nanjing, an oil and chemical tanker, flagged Singapore

 

Container loading

Almost as intriguing as the physical operations of the port are its works in communications and public relations. The boat tour I took and the port's public exhibition center are awash with boastful facts. There also are brochures and special exhibition days that feature recent and upcoming green initiatives at the port. That's good, of course. Yet for the touristic observer such as me, even unusually informed as I am, it's impossible casually to disentangle fact and propaganda, much less to interrogate the presentation for greenwashing.

Vole au Vent, a heavy-lift, self-elevating, jack-up installation vessel, flagged Luxembourg,
loading locally manufactured wind turbines for off-shore destinations

A register of slave transactions,
Maison de l'armateur

The Port of Le Havre also figures in the history of slavery. People from Africa were trafficked through Le Havre, part of the triangular route, to French colonies in the Americas. Le Havre was the imputed port of origin for more than 450 slave voyages trafficking at least 142,341 persons from 1571 to 1848, according to data at Slave Voyages

Maison de l'armateur

. A memorial plaque in "the slave streets of Le Havre" remembers 90,000 trafficked persons. Either way, incredibly, Le Havre was only the third largest slave port in France, where an estimated 1.38 million people were embarked for enslavement.

"Closet" celebrating accomplished
free persons of color,
Maison de l'armateur

The Le Havre Ship Owner's House, or Maison de l'armateur, is a preserved 18th century residence that showcases the opulent lifestyle of the successful merchant of the time. That lifestyle was built on a range of commodities, slavery included. Yet Africans who passed through Le Havre, including those who remained and were enslaved before definitive abolition in France in 1848, were omitted from patriotic historical narratives—whitewashing.

Socially and legally, modern France has dedicated itself peculiarly, present populist inclinations notwithstanding, to memory initiatives, that is, the compulsory remembrance of historical wrongs. The criminalization of Holocaust denial is probably the most often cited example of "French memory laws." But brutal colonialism and the slave trade figure in too.

Accordingly seeking to balance its presentation, the Ship Owner's House presently features a fascinating tandem exhibition, Reminiscences: Phantoms of Slavery (May 8 to Sept. 20, 2026). The exhibition is not set aside in a single space, the usual museum M.O.; rather, the African story is told right alongside the ordinary exhibition with the juxtaposition of radically differently themed art and information. The juxtaposition is often clever, for example, haunting the vestibule of a genteel bedroom with an amber glow behind silhouettes of African celebrants.

Émile Loubon, Le Port du Havre au XIXe siècle (1843),
with museum tags showing offloaded goods

Diorama depicting post-colonial reparations rally, Maison de l'armateur

Acerbic art characterizing a black stain on whitewashed history, Maison de l'armateur

There's plenty in Le Havre to stimulate the mind, not to mention the palate, of the law student and law professor. I hope the students who endured my lessons got something worthwhile from the week, if I dare not hope they learned as much as I did.

I offer my sincere gratitude to the students and staff at Le Havre, to Professors Allard and Capelle, as well as Professor Allard's husband for his hospitality, and to Professors Cerniglia, Faizer, and Reid, as well as Professor Cerniglia's partner, for their generous friendship and collegiality.

Jusqu’au Bout du Monde (2018) by Fabien Mérelle, Port of Le Havre; St. Joseph's Church, behind

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.

Whitman: Failing rule of law in America means, if not civil war, ever more dismal standards of living, dying

Whitman speaks in Montreal.
RJ Peltz-Steele CC BY-NC-SA 4.0

Professor James Q. Whitman, Yale Law, just concluded an extraordinary lecture on the failure of the rule of law in America.

Whitman gave the plenary keynote at the annual meeting of the American Society of Comparative Law, meeting at the Faculty of Law of McGill University, in Montreal, Canada.

Whitman organized his talk in two principal points. First, he explained that the Trump administration's overrunning of the rule of law is not wholly new, but a result of "longstanding" dysfunction.

Namely, the American "variety" of rule of law never embodied the notion familiar in Europe, that law is to be followed rather than circumvented; rather, the American conception of "freedom" fostered law only as a framework to be gamed. The phenomenon can be seen, for example, in the way bankruptcy is tolerated legally and even regarded as social and economic achievement; the way transaction costs are weaponized to convert civil dispute resolution into settlement calculation rather than contest of merit; and the way criminal charges are reduced to plea bargaining irrespective of guilt or innocence.

For Whitman's second point, he referenced his 2017 book, Hitler's American Model: The United States and the Making of Nazi Race Law. Whitman concluded in that book that Nazi Germany took from American law not racism per se, but the dangerous notion of a legal framework that formally recognizes equality while legislating based on race, thus, e.g., "separate but equal." This point further demonstrates that American law provides a framework to be gamed. Despite the brief respite of the civil rights era, Whitman said, the United States remains plagued by the "curse" of inequality and might always be.

America's rule-of-law problem is made worse by the failure of common law to evolve, and a small, selective, general-jurisdiction Supreme Court woefully outdated and outmatched by the challenges facing a modern economy, as demonstrated in comparison with the constitutional courts known elsewhere in the world. The U.S. Supreme Court is simply too slow to respond to crisis, Whitman said, and when it does, it responds with weak rules that simply invite next-level gaming.

If Trump acts so boldly as to nullify the results of the next presidential election, Whitman posited, then civil war will break out. But the more likely alternative might be no better: America continues to hobble along with dysfunctional rule of law, growing inequality, and an ever worsening length and quality of life for ordinary people, who are constantly on the brink of financial ruin and of death and suffering by curable disease.

Whitman is the author of an article on my shortlist of favorite law review articles ever, The Two Western Cultures of Privacy: Dignity Versus Liberty (2003). The article exemplifies comparative legal research and writing and was essential to shape my understanding of personal privacy in the digital age.

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.