Copyright (c) 2009 Berkeley Electronic Press All rights reserved. http://www.bepress.com/gj Recent documents in Global Jurist en-us Wed, 11 Nov 2009 23:22:12 PST 3600 http://www.bepress.com/gj/vol9/iss4/art6 http://www.bepress.com/gj/vol9/iss4/art6 Tue, 10 Nov 2009 09:49:21 PST Different ideas about justice convey different images that can be captured by a dancing metaphor. This paper suggests that the adversary system can be associated with the idea of a 'tango justice'; the non-adversary one with that of a 'rumba justice.' 'Tango' can be performed by two dancers and only by those two, acting together in the venture of establishing the adversarial truth. 'Rumba,' on the contrary, is performed by a variable number of dancers occasionally alone and occasionally in groups with many shifts and continuous substitutions of dancers and roles. It is a genuinely communal performance in the collective search of an objective truth. The paper shows that the two dances associated with the two systems reflect different notions of 'truth' and lead to different procedural arrangements consistent with their underlying tenets. Elisabetta Grande comparative criminal procedure http://www.bepress.com/gj/vol9/iss4/art5 http://www.bepress.com/gj/vol9/iss4/art5 Mon, 02 Nov 2009 09:50:50 PST With its fundamental decision In re Winship (1970) the United States Supreme Court set the constitutional basis of the standard of persuasion in criminal trials. The long standing standard of "proof beyond a reasonable doubt" was selected by the Court as the bedrock that protects the values at stake in a criminal case. Soon after this decision a dispute started between scholars and Courts on whether the "reasonable doubt standard" ought to be defined by jury instructions or could be considered a matter of the jurors' "original understanding," that is a "self-evident" concept. Depending on the solution of the dispute, failing to define the standard through suitable instruction could amount to a reversible constitutional error (i.e. a constitutional error that imposes reversal). In 2006 the highly discussed law n.46 introduced the standard of "proof beyond a reasonable doubt" ( prova "al di lą di ogni ragionevole dubbio") in the Italian Criminal Procedure Code. The law does not define the standard but just states it. Even prior to this, in Italy, the standard at issue had been applied in important decisions by the Corte di Cassazione and some scholars had strongly argued the need of its introduction in the Italian criminal system. Both the Italian courts and Italian scholars had impliedly or explicitly referred to the U.S. legal experience for guidance. The U.S. and Italian criminal systems are notably different. Apart from the differences in substantial criminal law, those in criminal procedure are pronounced. According to these differences it is possible to argue that the same standard of persuasion might be given a different regime of application in the two systems. The present paper doesn't deal with this last issue, but is based on the premise that the concept itself of "proof beyond a reasonable doubt" has the same significance in the two systems. The aim of this paper is to show that "proof beyond a reasonable doubt," far from being a self-evident concept, needs accurate explanation. In order to do that, the paper studies the Italian and the U.S. legal cultures on the subject; that is, using Lawrence M. Friedman's words, "the ideas, values, expectations and attitudes - towards the standard - which some public or some part of the public holds." First, it focuses on the so called "external legal culture" remembering that this kind of legal culture has, through the institution of the jury, a peculiar weight in the application of the law in the U.S. criminal system. At this stage, the study also takes into account the "ideas of the standard" that emerge from movies, literature and newspapers. Afterwards the paper quickly focuses on the so called "internal legal culture," studying relevant decisions and doctrinal contributions to the subject. The consideration of the Italian and U.S. legal cultures leads to the conclusion that there is widespread confusion on the concept of "proof beyond a reasonable doubt" even within the community of lawyers and judges. For a correct understanding of the standard there is the need for a definition and, especially, for the specification of its rationales and its contents. Thus, the last goal of the paper is to point out the fundamental traits of the reasonable doubt standard with the help of the legal cultures previously assessed. A hint is also offered by some linguistic and further sociological consideration. The hope is to contribute, even slightly, to the understanding and therefore the application of such an important rule. Federico Picinali "sociology of law" "evidence law" "criminal law" http://www.bepress.com/gj/vol9/iss4/art4 http://www.bepress.com/gj/vol9/iss4/art4 Mon, 02 Nov 2009 09:50:47 PST Hedge funds have become active lately in the market for corporate control. Their active involvement has been propelled by a tactic allowing them to decouple voting rights from economic ownership and labeled in the literature as "encumbered shares" or "empty voting." The aim of this article is twofold. On the one hand, I address the impact of hedge funds' activism on the financial markets and on the portfolio companies. In general terms, hedge funds' activism should be seen as a neutral element. After a cost-benefit analysis, I show that the costs implied by hedge funds' activism are at least offset by the relevant benefits. Data reported by recent empirical studies seem to back this conclusion. However, when empty voting is used, a potential risk of incentives distortion arises, particularly when empty voting is coupled with a conflicted position of the hedge fund which stands on both sides of the transaction, as illustrated by the famous King-Mylan case. In addition, I show with a numerical example that under certain circumstances empty voting likely causes and/or facilitates value-destroying (inefficient) mergers. On the other hand, the article pursues a policy approach. I do not present ad hoc policy measures based either on disclosure or voting abstention proposals, as already done in literature. Rather, I frame empty voting used in merger and acquisition transactions within the current Delaware corporate law standards of review. I indeed propose a functional approach based on the fiduciary duties doctrine which is applicable to empty voting regardless of the technical device employed. It endorses the direct involvement of the disinterested shareholders (i.e. the shareholders other than the empty voters) and posits that an approval of the transaction by the majority of disinterested shareholders should trigger a business judgment presumption. Andrea Zanoni http://www.bepress.com/gj/vol9/iss4/art3 http://www.bepress.com/gj/vol9/iss4/art3 Mon, 02 Nov 2009 09:50:44 PST This article explores the promises and pitfalls of behavioral economics for comparative legal research, in particular in view of what could be called the apparently mere heuristic aspirations of traditional comparative legal research. Starting from the well-known functional method of comparative law, the first part of the article draws attention to an important feature of most contemporary comparative legal research, that is, its remarkable lack of interest in empirical substantiation of its underlying claims and beliefs. Recently, this attitude has even been explicitly promoted by ‘heuristically inclined' functional comparatists. The second part of the article explores to what extent behavioral economics could prove of assistance in ‘overcoming' these mere heuristic aspirations. It is submitted that behavioral economics does have valuable insights to offer comparative legal research, notably as regards the empirical validation and (cultural) variability of the point of reference chosen. Julie De Coninck comparative law http://www.bepress.com/gj/vol9/iss4/art2 http://www.bepress.com/gj/vol9/iss4/art2 Tue, 27 Oct 2009 05:24:56 PDT Being one of the most eminent schools of jurisprudence in Eastern Philosophy, Classical Chinese Legalism has a lot to offer to the understanding of the underlying forces which shaped East Asian legal systems even to the present day. I will comprehensively reconstruct the Legalist idea of law in three dimensions, (1) law and society, (2) law and politics, and (3) law and morality. I will refute the overtly negative and simplistic conventional readings that suggest that Legalism is merely a Legal Positivist blueprint of authoritarian statecraft. The long-neglected connections between Legalism and the cosmic order have grounded law on a particular political morality. Despite being plagued by some difficulties, the Legalists' contributions to social theory, anthropology, and procedural values are significant, even to researchers in a global era. Eric C. Ip comparative law and jurisprudence http://www.bepress.com/gj/vol9/iss4/art1 http://www.bepress.com/gj/vol9/iss4/art1 Tue, 27 Oct 2009 05:24:53 PDT The conflict between EU consumer protection provided for by the Directive on unfair terms in consumer contracts and principles of arbitration came to a head in the ECJ's Claro case. This case has shown that the arbitration clause may be an unfair contract term par excellence. I use this case as a point of departure for the considerations on unfairness of arbitration clause in contracts between businesses and consumers. Consequently, I draw a parallel between the Claro case and the lasting contractual practice in the Czech Republic where the arbitration clauses incorporated in standard form contracts between businesses and consumers are in many instances unfair. Their unfairness stems from the fact that arbitration clauses refer to arbitrators ad hoc who are unilaterally appointed and paid by businesses. Since standard form contracts are proffered by businesses, consumers are not given an opportunity to negotiate about the contract. This state of affairs in the Czech Republic is at variance with the Directive on unfair contract terms as well as the ECJ's case law which provides its interpretation. From the structural viewpoint, first I am going to briefly inform about the consumer protection provided by the Directive. Subsequently, I deal with the ECJ's cases having an importance for further considerations regarding unfair nature of arbitration clauses while putting particular emphasis on the ECJ's Claro case. Then, I aim to show that the Directive has not been correctly implemented into Czech Law. As a next step, I would like to offer a possible solution for this unsatisfactory situation in the Czech Republic with the help of comparative insight into legal orders of the Member States. Finally, the development of the view on arbitration clauses as unfair contract terms in the EU is reflected. Zdenek Novy Consumer contracts and arbitration http://www.bepress.com/gj/vol9/iss2/art10 http://www.bepress.com/gj/vol9/iss2/art10 Tue, 27 Oct 2009 05:24:47 PDT On January 1, 1994, the day when NAFTA entered into force, a group of indigenous appeared from the Lacandon jungle in Chiapas, occupied the city hall of San Cristóbal de las Casas, presented themselves as the Zapatista Army and announced: "We are the product of 500 years of fighting. [] But today we say: It is enough." This was the beginning of a rebellion which attracted international attention and is still going on today. Taking the announcement seriously, this article traces the history of 500 years from a legal perspective. By considering also the international dimension of this history, it shall be revealed that the reasons for the Zapatista revolt range from the Lacandon jungle through Chiapas, Mexico, Latin America, to the world and its global order. The article will focus on their demand for "land and freedom" which leads to the so-called agrarian question and the long history of bloody disputes about land, means of existence, natural resources, autonomy, sovereignty, power, dominance, oppression, life and death. The history of Mexican land law (sometimes as a legal reflection, sometimes as a result and sometimes as an origin of these disputes) shows with outstanding clarity international structures of hegemony. Foreign influence and legal transfer in accordance with European and U.S. economic interest have been shaping this area of law since colonization. On the other hand, history also gave birth to strong counter-hegemonic movements: the Mexican Revolution at the beginning of the 20th century and today the Zapatista rebellion. The objective of the article is the following: By putting the Zapatista struggle for land in the historical and global context, their "anti-systemic" or "postcolonial" quality shall be revealed. Against this background, the legal analysis of their rebellion shall be used to develop cornerstones of a postcolonial legal perspective. Hence, independent from the chronological order, the theoretical starting point is January 1, 1994. History will be approached as a memory that flashes on this day in the moment of uprising. Judith Schacherreiter land law comparative law property law http://www.bepress.com/gj/vol9/iss2/art9 http://www.bepress.com/gj/vol9/iss2/art9 Tue, 22 Sep 2009 08:36:41 PDT Most developing and transition countries adopted statutes prohibiting anticompetitive agreements and abusive practices during the 1980's and 1990's. The effectiveness of these laws is nevertheless widely debated. This paper contributes to the literature by conducting an event study of the adoption of Russian competition laws in the early years of transition, the subsequent economic developments and the legislative reform process of 2002-2006. An examination of the substantive prohibitions and enforcement data reveals that Russian competition laws relied on complex standards and imposed weak constraints on anticompetitive practices. The more recent shift to simpler and more predictable per se prohibitions against collusive agreements substantiates this hypothesis. The evidence has implications for the design of regulatory regimes in other countries with laws similar to those operative in Russia during the transition process. Reza Rajabiun Law and Economics Comparative Law http://www.bepress.com/gj/vol9/iss2/art8 http://www.bepress.com/gj/vol9/iss2/art8 Wed, 16 Sep 2009 08:16:40 PDT This article aims to provide the justification for a subaltern theory of human rights. It explains the desirability of interpretative strategies that reveal the role, knowledge, contributions and sources that depict subaltern human rights perspectives. In particular, it considers the work of Boaventura de Sousa Santos, whose various writings directly or indirectly address the central issues relating to human rights from these perspectives. It subsequently explores the relationship between Santos and other protagonists, such as Upendra Baxi. These perspectives are then correlated with the view that the optimism for subaltern human rights may seem an insurmountable challenge given that this is hinged on the possibilities of a relationship with law. The justification or indeed legitimacy of subaltern views of human rights rests squarely on the degree to which such claims can be concretized into law. For instance, the state-centric nature of international human rights law is closed to initiatives that fall beyond its scope. As a consequence, the final preoccupation in this article is to propose the deconstruction of human rights into a plural discourse of its law and jurisprudence. This, to me, rests on the possibility of extrapolating a view of human rights from the notion of legal pluralism. The article is structured into the following parts. The first fleshes out an understanding of the subaltern concept. The second part locates the subaltern within the context of Santos' work on globalization; here, an attempt is made to correlate the relationship between globalization and human rights, particularly from the perspectives of the subaltern. The third part considers the loose connection of previous sections with the prospective theory of subaltern human rights and, ultimately, how legal pluralism supports this endeavor. Oche Onazi Human rights http://www.bepress.com/gj/vol9/iss2/art7 http://www.bepress.com/gj/vol9/iss2/art7 Wed, 16 Sep 2009 08:16:36 PDT In the context of international law, "transitology" is often used to describe the literature surrounding the former Soviet Union (fSU) and the subsequent reform attempts by Western and Eastern/Central European market reformers. While it is often acknowledged there have been other "waves" of transition, this literature typically asserts that the situation in the fSU is somehow distinct in human history, and thus, to a large extent, unmixable with other past "transition" histories. Likewise, the story of the Soviet Union's dissolution, and the subsequent reforms in its aftermath, largely avoid the radar of critical colonial discourses. In short, there is almost no effort to link the fSU to the 19th century colonial project of Western European states, in particular the story of informal empire. This article seeks to re-frame the post-communist transition debate in terms of the broader international challenges of decolonization, "neo-colonialism," and informal empire building in the West, the former Soviet Union, as well as between the two in the post Soviet space. John D. Haskell Law and Transition; Transitology