Category Archives: 2

Decriminalizing “Mere” Walkaway Prison Escapes Is a Mistake

By Dr. T. Markus Funk*

(2023) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Image link.

On the last day of August 2023, video captured 34-year-old convicted killer Danelo Cavalcante escaping his Pennsylvania maximum security prison by crab-walking up two walls separated by a five-foot hallway.[1] Cavalcante was serving a life sentence for his brutal April 2021 stabbing murder of ex-girlfriend Deborah Brandao, an attack that took place in front of her two small children.[2] He additionally is wanted in his native Brazil for felling a friend in a hail of bullets. (Only his 2018 decision to illegally enter the United States has thus far allowed him to avoid facing those charges.)

Cavalcante was and is a dangerous, hardened criminal—which explains why his escape made international news during the two weeks he was able to evade recapture despite the ongoing “intense manhunt.”[3]

The United States is a country grappling with criminal justice reform efforts, many of which are sensible, morally compelled, and overdue. But it would be a mistake to accept the invitation to follow the examples of countries like Germany, Switzerland, Mexico, The Netherlands, and Austria which do not outlaw non-violent prisoner escapes such as Cavalcante’s.[4]
Continue reading

Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine

by Julia Motte-Baumvol*, Tarin Cristino Frota Mont’Alverne**, and Gabriel Braga Guimarães***

(2022) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

The war in Ukraine has brought about an unprecedented change in the way the European Union addresses migration-related issues. Following the invasion of Ukraine by Russian forces in late February 2022, the Council of the European Union adopted an Implementing Decision establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Council Directive 2001/55/EC, for the first time activating its temporary protection mechanism. While the Directive’s provisions reflect the founding principles of the European Union, the specific vulnerabilities of international migrants require suitable social provisions to afford them a standard of living as required to ensure their health and well-being for the duration of the protection provided by the Directive. The purpose of this article is to discuss the nature of the challenges arising from this first application of the ‘Temporary Protection Directive’, as well as the impact of these challenges on the Directive’s efficacy and on the scope of the protection for the displaced persons covered by it. It argues, first, that the joint interpretation of the Directive and the Council Decision significantly limits the personal scope of the protection, leaving certain categories of migrants behind. The paper then goes on to examine the Directive’s substance and suggests that a broad interpretation of its social protection provisions reveals new difficulties regarding the financing and sustainability of this protection and its sustainability.

Continue reading

The Case for Market for Corporate Control in Korea

by Hwa-Jin Kim*

This article is published simultaneously in 8 Journal of Korean Law (2009) 227-276.

(2009) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

This Article offers an assessment of the preliminary evidence that the market for corporate control functions as a disciplinary mechanism for poor corporate governance in Korea. It analyzes SK Corporation’s fight against Sovereign Asset Management, contest for control over the Hyundai Group, KT&G’s fight against Carl Icahn, and LG Group and Carlyle’s proxy contest against Hanaro Telecom, together with relevant laws and regulations. These high-profile cases dramatically exemplified the role of takeovers in the improvement of the corporate governance of Korean companies, and brought about active policy discussions in respect of the market for corporate control and takeover defenses. This Article will also provide a quick overview over the provisions in draft new Korean Commercial Code related to the market for corporate control and takeover defenses, including squeeze-out, poison pills, and dual-class commons. This Article argues that as the increasing exposure of control to the market could eliminate the inefficient controlling shareholder system in Korea, the new Korean Commercial Code should strike a balance between the active market for corporate control and effective takeover defensive tactics for the benefit of all shareholders and the value of the company.

Continue reading

Conflicts in 13th Century Maritime Law: A Comparison between five European Ports

by Albrecht Cordes*

(2020) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Almost simultaneously, at the end of the 13th century, maritime laws were being written down all around Europe. This invites a synchronic comparative study. This paper compares three areas of maritime law of varying levels of abstraction: jettison, seamen’s labour law, and common decision-making before and during the voyage. The outcome, as in any comparison, is differences and similarities – differences in the degree of the lord’s (king’s, duke’s) influence, who, for instance, ordered the presence of a ship notary on Mediterranean seafaring. The maritime laws less influenced by the heavy hand of the state abound in casuistic details, evidently being the product of the process of negotiations – negotiations which included the seamen, an influential and forthright group indeed. Despite all the natural differences within the vast space between Norway and the Mediterranean, the challenges posed by the characteristics of seafaring in general are quite similar. The solutions, however, differ greatly and bristle with creativity and variety. The maritime law of the 13th century looks like a gigantic legal laboratory in which experiments were conducted continuously. Tendencies towards a stronger unification and implementation of specific solutions only cropped up in the following century.

Continue reading

Religious constitutionalism: An Indonesian-esque interpretive venture

by Pranoto Iskandar*

(2019) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Is secularism dead? Many have argued that, as a path, secularism provides nothing but a dead end. Whether one likes it not, however, it is hard to rationally deny the desirability of having secularity as the ideal condition for national political contestation. From that vantage point, this paper argues that the alternative religious-friendly model that is based on pan-religious values has also failed miserably. In contravention of scholarly orthodoxy, the paper posits secularism is, in fact, the early Javanese nationalist’s endgame. Secularity is implicit in Javanese “political theory,” and, thus, it is natural to assume that for the early nationalists, secularity was important for the national effort of “getting to Denmark.” Unfortunately, Indonesia’s temporary accommodation of religion as a solution to the Islamists insistence has somewhat become fossilised in the political system. Furthermore, the Indonesian experiment with the moderate wall of separation has, disturbingly, encouraged more religious parochialism to be smuggled through indigeneity-based claims. More importantly, it has also set political reform back.

Continue reading

Indigenizing Constitutionalism: A Critical Reading of “Asian Constitutionalism”

by Pranoto Iskandar *

(2017) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

The intense rise of the “Rest” has not only significantly wrought the real-world dimensions of the political and economic global landscape, which marked the power shift from the traditional West, but serenely introduced a different kind of intellectualism that challenges the Enlightenment based orthodoxies that have typically supported the liberal tradition. As a distinct scholarly strain, this vantage point of the “other” primarily rests on the binary self-proclaimed indigeneity, i.e. the native values of a society, that eventually challenges the legitimacy of the once well-established notions such as the rule of law, separation of power, secularism and constitutionalism that are the indisputable buttresses of democracy. In that light, this article situates the emerging ni debate on a distinct model of constitutionalism in Indonesia and the surrounding countries as the most current rebellious streak against the liberal constitutionalism. In so doing, more specifically, this article critically examines the application of the indigeneity-based arguments in the context of the discourse on constitutionalism. Rather than speaking for the population that they are purportedly representing, this article finds that the indigeneity-based arguments are no less alien than the liberal model that they despise as both culturally and sociologically estranged.
Continue reading

Judicial Independence: The Judge as a Third Party to the Dispute

by Lorne Neudorf*

(2015) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

In this article, the author sets out a conceptual framework for judicial independence. From the starting point of adjudication as the basic function of the judiciary, the author embarks on an historical inquiry to shed light on the role of the judge in resolving legal disputes. The inquiry reveals a tradition of adjudicative impartiality that stretches back to the legal system of ancient Egypt. While all judges strive to maintain the status of a third party to the dispute, the historical development of an adjudicative tradition in Egypt resulted in a path-dependent conception of the judicial role that influences present understandings of judges, most prominently seen in the continuing use of the scales of justice hieroglyph. Given its significance to the resolution of disputes, judicial impartiality is the unifying theme in the theory of law advanced by Hobbes, who was keenly aware of the Egyptian practice. According to Hobbes, in the state of nature, each person possesses complete liberty. In order to enter into a peaceful society, individuals must give up the right to decide their own disputes. When individuals no longer act as their own judges, a third party must be called upon to resolve conflict. This decision-maker must maintain third party status by avoiding close connections with the parties or the issue in dispute in order to maintain legitimacy. Given this understanding, the author proposes the perception of impartiality as the rationale of an independent judiciary. Judicial independence seeks to preserve the status of the judge as a third party to the dispute by creating the necessary space between judges and actual and potential sources of improper influences. Because the definition of improper influence is determined by individuals from the community, the principle of judicial independence is significantly context-dependent. Finally, the author critiques the doctrine of judicial independence in Canadian law from the perspective of this conceptual framework.

Continue reading

New Packaging for Left-Over Big Data: “Identity Proofing” and “Equality Monitoring”

by Orlan Lee*

(2014) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

“Identity Proofing” is a commercial database search product recently adopted by the US Department of Homeland Security (DHS), other government agencies, and commercial entities, paradoxically, to verify the identity of the holder of identity documents. Clearly, in the security world, tracking has greater appeal than hard copy credentials. No matter the photo IDs and documents with embossed seals, the system relies on confirming our knowledge of database entries: present and former home addresses, present and former employers, details of financial credit experience, names of personal associates, and what the latter say about the person the system has their eye on. If, when “quizzed” about these things, your answers match the contents of your file, you may convince the inquiring IdP client that you are the rightful holder of your ID docs. Without a warrant, even the police could not seize all your personal information in the United States. Of course, nothing can stop you from consenting to provide it. Presumably, you have also consented, sometime, somewhere, for all this to be already available in a commercial file.

Rarely do we see an industry leader—here a developer of prime “identity proofing” products—also admit that a hidden weakness may lie anywhere along the chain of data collection, entry, search, recovery, or solutions application:

Source data is sometimes reported or entered inaccurately, processed poorly or incorrectly, and is generally not free from defect. This product or service aggregates and reports data as provided by the public records and commercially available data sources, and is not the source of the data, nor is it a compilation of the data. Before relying on any data, it should be independently verified.1

The UK Equality Act signifies real advances toward the “Aim of Equality”. Whether or not reliable or useful statistics emerge from the “Duty to Monitor”, British HR practice now outdoes the Americans in their intrusive personal data tracking.

Continue reading