Browsing by Subject "comparative law"

Now showing 1 - 4 of 4
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    Financial Incentives and Truth-Telling: The Growth of Whistle-Blowing Legislation in the United States
    (Springer, 2016) Boyne, Shawn Marie; Robert H. McKinley School of Law
    Although government efforts to encourage whistleblowers to come forward date back to 1778, the United States has enjoyed a conflicted history with respect to whistleblowers. While some commentators pillory Edward Snowden, some privacy rights advocates praise his actions. Perhaps reflecting these conflicting sentiments, current protections in the U.S. are a patchwork collection of industry-specific legislation. The current slate of legislation is largely the result of the confluence of recurring waves of media publicity exposing government fraud, the growth in government spending and involvement, and Congress’s attempts to respond to adverse publicity concerning government fraud. The succession of public crises running from Watergate to the wasteful spending in the Iraq War, to the collapse of the financial and securities industries have demonstrated that the government needs whistleblowers to help expose fraud and waste. As successive legislative attempts to extend whistleblower protections have demonstrated, reform “is usually precipitated by some crisis or new political movement that disrupts the preexisting status quo.”
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    A tale of two federal systems
    (2012) Ryznar, Margaret; Stqpieri-Sporek, Anna
    In the United States, the harmonization of family law is not possible under the federal system, and family laws differ based on each state’s sensibilities. However, in another system resembling federalism — the European Union — efforts to harmonize family laws among member states are aggressively being pursued, with the next milestone being the European Union Commission’s pending proposal for the harmonization of matrimonial property regimes. In fact, harmonization is the most dynamic aspect of European family law today, and this significant experiment in the harmonization of family law offers lessons into the roles of jurisdictional autonomy, cultural relativism, and legal absolutes in society, all of increasing significance in an increasingly mobile and international society. The result impacts innumerable marriages, their meaning, and their consequences.
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    Translating Civil Law 'Objectivity' with an Adversarial Brain: An Ethnographic Prspective
    (2014) Boyne, Shawn Marie; Robert H. McKinley School of Law
    The act of translation encompasses more than the transfer of linguistic meaning. It also involves the transfer of larger cultural and epistemological meanings (Wolf, 2011). When legal texts are the object of translation, the process includes the “mechanism of the law” (Šarčević 2000:1). The role of a linguist and translation theory in this process is contested (Harvey 2002) as some scholars have argued that legal texts possess a unique communicative function often overlooked by linguists (Šarčević 2012:189). While legal scholars have questioned linguists’ claims to participate the law related interpretation process, this chapter sidesteps that debate (Poirier 1995: 1034). Instead I address the problems of subjectivity and interpretation that legal scholars themselves face as they attempt to analyze the role that law plays on unfamiliar turf. I identify and detail two challenges embedded in comparative legal jurisprudence. One stems the pitfalls that legal scholars encounter when they rely on legal texts as a source of understanding rather than investigating how the law actually functions on the ground. The second stems from the comparative legal scholar’s subjectivity. In the field of comparative law, these "translation" errors as well as problems of subjectivity colored English-language scholarship regarding the objectivity of German prosecutors for several decades. I show how scholars' use of German codes as a proxy for German practice led scholars to claim that the German criminal justice system effectively controlled prosecutorial discretion. While new scholarship on German plea bargaining practices attempts to destroy the myth of limited discretion, it misses the role that organizational culture and training play in shaping decision-making processes. Drawing from my fieldwork in Germany, I use examples from my own experience to show the dangers of researcher subjectivity. The paper concludes with a call for further comparative research that goes beyond am examination of foreign texts and explores foreign legal practices.
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    Two Direct Rights of Action in Child Support Enforcement
    (2012) Ryznar, Margaret
    Child support enforcement and collection is a familiar problem in both the United Kingdom and the United States, fraught with low enforcement rates and high costs. The United Kingdom had approached the problem by centralizing collection efforts through the Child Support Agency and prohibiting direct action by custodial parents against defaulting noncustodial parents, but permitting judicial review of the Child Support Agency’s actions. The United States, meanwhile, continues to permit direct actions by custodial parents, unless they are on welfare, and supports their efforts through governmental agencies, but does not allow for suit against the relevant government agency. This Article is the first to comparatively consider the merits and drawbacks of each use of the judiciary in child support collection, seeking to maximize child support enforcement in both countries while considering the rights of both parents and their children. The resulting insights are especially useful for the United Kingdom child support system, which is currently being reincarnated in its third form since 1991, illustrating the difficulty of designing an effective and efficient child support system.