Religious talk touches on Jewish law, legal writing

Pictured Rocks National Lakeshore
RJ Peltz-Steele CC BY-NC-SA 4.0

On Sunday, I had the privilege of delivering the message at my home church, in Barrington, R.I., regarding Psalm 121.

Anyone is welcome to watch the service. (The message starts at about 14:30.) The photo I referenced, from Pictured Rocks National Lakeshore, appears here, at left.

There is a bit to do with law. I talked about the Hebrew word shomer, which along with the related verb yishmar is used in some form six times in Psalm 121 to describe God as a watchman or guardian. The term has particular application in Jewish law, referring to the person who watches over the body of the deceased until burial, and to the person who is responsible for ensuring kosher standards in a kitchen.

Pictured Rocks is so named for images perceived
in the minerals and sediment. RJ Peltz-Steele CC BY-NC-SA 4.0

I talked also about the merism, the literary device by which a writer cites two extremes to incorporate everything in between as well, or to two contrasting parts to refer to the whole. The merism is employed repeatedly in Psalm 121, for example in referring to the same "heaven and earth" described in Genesis 1:1.

Legal doublets, usually of historical origin, can be merisms. In the sermon, I used the examples of "cease and desist" and "aiding and abetting." But on further reflection, I don't think they're great examples, because the words are not so clearly contrasting. A better example would be "last will and testament," because the term once referred to two discrete documents, disposing of real and personal property, respectively. The merism thus signals that the instant document represents the whole of the testator's intentions.

Legal writers often are admonished to trim duplicative doublets, especially when the words are mere synonyms, lest they be misconstrued as narrowing specifics. But the imperative of clear and succinct writing sometimes should give way to the value in a term of art, which incorporates an established meaning, and in a true merism, which conveys the meaning of expansive entirety.

UPDATE, Oct. 26, 2024: Message now available on YouTube.

My writing is 'not very good,' and other reasons you can't get ahead in our not-really-a meritocracy

Pxhere CC0

A purported mentor once told me that probably I couldn't find a job in academics because my "writing is not very good."

'Tis the season when the law professor should be writing exams, yet is inundated and distracted by requests for recommendation letters to aid students on the career track. The distraction has caused me to ponder the futility of it all. Aside from the fact that my laboriously and meticulously drafted letters scarcely will be read, I'm saddened by how little a person can do to move the needle on ultimate potential in our supposed meritocracy.

In the 20-aughts, I was looking for my second job in academics, hoping to leave Arkansas and the curse of flyover country. My job search took five years. I lost count of how many applications I put in. It had to be more than there are law schools in the United States.

At some point, through a program I won't identify, as not to identify the person, I was paired with a mentor, an academic at a U.S. News "top 10" law school. After a couple of telephone counselings in which he told me nothing I did not know already, he suggested that maybe I needed to accept that I could not score a job because my "writing is not very good."

That was hurtful. Not because it wasn't a fair consideration to put on the table; it was. It was hurtful because it was his go-to conclusion, and rather the end point of the short arc that was his mentorship. There were countless other explanations for my struggle in the job market. He blew past all of them to rest on one: I suck.

Implicit in the suggestion was that he was at a top-10 school because he was so much better at the job than I. That's what hurt. And as I've matured in my career, I've come to realize how wrong he was.

I have a lot of experience now on the hiring side of hiring, almost three decades, at least in legal academics. And I've worked out a formula, though sometimes I tweak the apportionment, I feel like about describes the factors at play in getting a job, certainly in legal academics, but maybe anywhere:  

• 60% privileges; 
• 30% right-place-right-time; and 
• 10% merit.

I'm not one of these "privilege walk" organizers who use loaded questions to make people feel guilty about socioeconomic advantages, and then to feel good about having felt guilty, and then relish telling everyone how privileged I now know I am, without actually doing anything to make the world better. But I do try to be conscious of privileges, especially the ones that I have and did nothing to earn.

I did not start at the bottom of the ladder. That I'm not a person of color, thus not subject to unfair biases manifesting as implicit assumptions about aptitude and potential, nor followed by security in stores and distrusting of police; that I went to K12 in reputable suburban school districts with dedicated teachers and was a child of two parents with college degrees: these factors have worked immeasurable benefits in my life, no thanks to anything I did.

I didn't start at the top, either. My divorced, usually single parents were college educated thanks to community-college access and the military. My family was the typical penniless-20th-century-immigrant story, and my parents and grandparents were victimized by ethnic discrimination with real socioeconomic consequences. I was able to go from public school to a first-rate undergrad with mostly private-schooled kids only because I earned a full scholarship.

On the inside of hiring in academics—I can tell another time cringe-worthy stories of before academics—I have seen it all, and candidate merit is only weakly indicative of outcome.

Because of the prevalence of liberal politics in academics—I do not suggest that preferences ordinarily run in these directions in the job market in general—I had a dean who announced the race (not mine) and gender (not mine) of an intended hire at the beginning of the search process; and I've had colleagues announce, also in advance of a search, that they would vote against any candidate of a certain race (mine) or gender (mine). I've likewise heard colleagues openly favor or disfavor candidates based on perceived sexual orientation (minority favored) and religion (belief disfavored). So to pretend that these factors are not in play, whether or not they are verbalized, would be willfully ignorant.

But race, gender, etc., are easy targets to exemplify pernicious discrimination. There are other factors that are more subtle, yet equally well effect socioeconomic exclusion, and thus indirectly race discrimination. And these factors are embraced by persons both liberally and conservatively minded.

When I was at a "tier 3" law school looking for a job, a colleague at a "tier 2" school—who knew I was looking for a job—asked me whether I might recommend anyone—not me—to fill an open position at her school. I was disqualified presumptively for the open position, because I did not do a judicial clerkship after law school. My colleague iterated this hiring expectation as if it were a self-evident sine qua non. She assumed I knew my place, and I was in it. One does not advance to tier 2 without a clerkship on the resume. "We prefer people who've clerked at the Supreme Court," she said breezily.

I didn't do a judicial clerkship after law school for various reasons. A big reason was that I was sick over the profound debt I had incurred paying for law school 100% with loans. 

I had turned down full scholarships at two other law schools to pay full freight at a top 10, because I hoped the top 10 would open doors the others could not. I could not see, after law school, how I could take a job in which I would struggle to make monthly payments, or worse, postpone them, with interest accruing. For the same reason, I didn't go back to journalism after law school, which had been my plan. I also did not have anyone in law or legal academics to advise me on the value of a clerkship—an opportunity, perversely, that one never has again—for my later career.

I was the beneficiary of many privileges at that time in life. Not among them was the luxury of choosing a clerkship or any job because it would be a smart resume builder, rather than because it would pay my bills. Not among them was having anyone to model a career in legal academics, or tell me what to do to get there. And yet, with no undergrad debt, I already was much better off than most of the students I teach now. I did not yet have a family to take care of. I was able to put every spare dime from my attorney earnings into paying off my debt.

My top-10 choice paid off some, because I would not otherwise have scored my first job in academics. A key faculty player in hiring had gone to the same law school I did. The hiring school was in urgent need of an immediate start, and I was willing to quit my job and move halfway across the country at Christmas. The hiring school was especially vexed over poor student writing skills, and I was a former journalist and capable copy editor. There it is: 60% privileges, 30% right-place-right-time, and 10% merit.

Yet I would be limited thenceforth by not having clerked, and by other, similar factors. I never volunteered abroad, as many aspiring academics do. I wanted to—because of my family ties, a passport was a privilege I did have—but, again, I had to work 50 weeks per year to pay on my debt.

At my attorney job, I had little to no mentorship; it was all about billable hours. I had no role models to show me how to navigate in that world. I had no business contacts; no matter how hard I worked, I never would have made partner. The media lawyer I worked for when I started left for an in-house position after a year, and I was reassigned to the grind of mass-tort discovery.

In my first academic post, I had little to no mentorship in my professional development at my "tier 3" school. I had not even a scholarship requirement for my first years, when I was a contract instructor, not tenure track. I did not know to publish, what to publish, or where. I wrote and published only because I wanted to, about whatever I wanted. It was the law-professor equivalent of being a journalist; if you have writing in your heart, it's a compulsion.

I did not know that the choices I was making, from starting as an instructor rather than an assistant professor, to the lack of an overarching research agenda, to everything from subject matter to placement strategy to the titles of my articles: all was part of a portfolio that I had only one chance to do right. I didn't.

Sometimes a student comes to me and expresses a desire for an academic career. My heart breaks. I have a rehearsed presentation to explain, as gently as I can, that the student already is behind on that goal: by definition, as we are having the conversation at a "tier 4," or bottom tier, law school. An academic career probably is foreclosed because of "poor" choices the student already has made unwittingly, such as having a family and living on a budget.

Mostly, the track is foreclosed by circumstances beyond the student's control: Urban childhood. Weak K12. No jobs for youth. No college counseling. Ailing parents. Delayed higher education. Being the wrong race, ethnicity, religion, or sexual orientation and identity for whatever is in fashion.

Even the brightest and most determined candidate cannot cause 10% merit to control the outcome.

The "mentor" I mentioned at the top: I take nothing away from his merit. But does he appreciate why he is where he is? Does he think that when he submits an article for publication, its merits are the principal driver of an offer? Does he think that when he submits a job application, his hard work is the principal driver of an invitation?

He's a white man who started adulthood before I and in the "Morning in America" Reagan heyday. I don't want to say what college he went to, but suffice to say, it's one you've heard of in connection with Presidents and Supreme Court Justices. Law school too. Maybe he was plucked from child labor in an Appalachian mine to be gifted with these opportunities, but odds are not. He then clerked for a federal appeals court, and then for the U.S. Supreme Court. He diversified the resume with a short stint abroad. He worked briefly in public and private sectors. He won a teaching fellowship in the top 10, and never worked lower: from there to tenure track, named professorship, center director, etc.

Brilliant bloke. 10%. 

But not that brilliant. 60% privileges, 30% right-place-right-time.

I think my writing is very good.

Curmudgeon speaks on decline of grammar, civilization

Deteriorating grammar and style conventions signal the crumbling of western civilization.

I'm a grammar-and-style curmudgeon, so take my declaration with a grain of salt. Still, I feel pretty confident about it.

When I was in journalism school, in what was then still called the "print" program, I and my cohort were allowed to make one technical mistake in a story without penalty. 

A freebie. One. Of whatever kind: spelling, grammar, style. After that, the grade plummeted precipitously. I tested the system with carelessness just once, and it was damage enough to deprive me of an A for the semester.

Nowadays I find I have to give student papers separate reads for technical and substance. There are so many technical problems in the average draft that I can't focus on the substance at the same time. I give separate grades for tech and substance, too, before I combine them in a formula weighted in favor of substance.

In fairness, most of my students did not go to journalism school. As American legal education is open to all majors, some students have not written since grade school. Our ranks include accounting majors who took only math-oriented tests in non-liberal arts bachelor's programs. (How is that even a thing?) Where they are on tech is not their fault, but a failure of American K16 education. My foreign students who speak English as a second language usually exhibit better tech skills than the average American 1L—notwithstanding telltale struggle with the confounding rules of definite and indefinite articles.

I'm proud of my daughter, who went to a public school that, exceptionally, emphasized writing. We chose where we live for the school. She didn't love the heavy writing emphasis at the time, and fair enough. But when she went to arts school for university, she was shocked by how poorly prepared her peers were in writing, including those who wished to build careers writing creatively for TV and film. Her skill in writing set her apart, as it continues to in the workforce.

Many students who struggle initially, to their credit, embrace my feedback, readily extrapolate appropriate rules, and greatly improve their writing. Some students masochistically seek out my writing tutelage because they know they've been cheated in their education and want to improve. Of course, a few resent and resist the feedback. The quality of legal writing in the everyday practice of law suggests that they're not wrong about where the norm falls. 

Just spend a few hours in the briefs at any courthouse, and you'll see what I mean. When I started teaching legal writing in 1998, I went to the courthouse in Little Rock, Arkansas, to compile some model practice documents for my students' reference. I found almost nothing I could hold up as exemplary. That was disappointing but educational.

As my reputation precedes me, my 1L students sometimes worry over whether I'll knock them down for grammar on final exams. I won't, I tell them, unless a misusage creates ambiguity or otherwise impedes the reader's understanding. That does happen. But even I have now and then mistyped a "your" instead of "you're" when writing under time pressure, phonetic ideation direct to fingers. Timed exams are not research papers or practice documents.

UCLA Law Professor Eugene Volokh wrote ably for Reason earlier this week on the use of "they" as a singular pronoun. Like his academic legal writing, his Academic Legal Writing is superb, and I routinely recommend it. Like he, apparently, I have long counseled students on ways to avoid singular constructions that invite the problem of generic gendered pronouns. When working over the text doesn't work—sometimes, the difference between singular and plural is required by legal precision—I recommend "he or she," however cumbersome.

Nowadays the problem of singular "they" bleeds into the issue of gender identity. I am sympathetic with how that "they" emerged amid the failure of "ze" or another creative alternative. When that "they" is used, it is treated grammatically as a plural, even if the person is singular. I'm not here opining on that issue. Professor Volokh gave the best advice, anyway: essentially, know your audience.

I give students the same advice generally. Maybe the judge in your case was an accounting major and will be satisfied as long as you can string sentences together into recognizable paragraphs. But maybe your judge is a curmudgeon. If a student needs a better reason to know the rules than because they're the rules, then it serves to know that it might pay, literally, to be highly fluent in the lingua franca.

I've been thinking about this not only because of Professor Volokh's item, but because I returned to my home state of Rhode Island last week to be confronted with two curiosities on newspaper fronts at my local grocery store.  Here's the Barrington Times of August 13:

Barrington Times, Aug. 16,  2023: "'None of these fields are getting rest.'"

This headline is not necessarily wrong, for a couple of reasons. But it gave me pause, frozen for a time in the grocery store portico.

The conventional wisdom is that the word "none" is a contraction of "not one." So, like "one," usually, "none" should take a singular subject. The line should be, then, "None of these fields is getting rest."

At the same time, what we might call "linguistic originalists" point to a long history of English-language usage tolerating both singular and plural treatment of "none." The rule oft recited today is that "none" should be treated as a plural when it reads as "not any," or when the range of things to which it refers is plural. So if the subject of the headline is "not any of these fields," then "are" is suitable.

I find that rule profoundly unhelpful, because there is no real difference between "not one" and "not any."  "Not one" almost invariably refers to a range of multiple candidates. Many sources on grammar give examples in which plural usage pertains to the subject structure "none of [them/these/etc.]," but that's not a sensible distinction either. The headline statement here is wholly equivalent to "none is getting rest," were the line to appear in a context in which the adjectival phrase "of these fields" were unnecessary for clarity.

Other sources use a flexible rule in which the writer chooses based on emphasis. Treating the subject as singular emphasizes the singularity. That's hardly a rule. But if it pertained, I would contend that the above usage is wrong. For if one field were rested at any given time, there would be no newsworthy assertion that a new field is needed.

I recognize, too, by the way, that the headline is a quote. According to my old-school journalistic rules, a quote can be changed to make it grammatically correct, as long as the grammatical error is not salient to the story. The theory behind the rule is that the ethic of truthfulness yields to the principle of doing no harm (embarrassment) to persons identified in stories. At some point, that approach presents policy challenges around dialect, cultural vernacular, and education policy. But none of those reasons here would preclude changing the quote.

Regardless of where one comes down on the Barrington Times headline, I contend that the treatment of "none" as plural is now widely reflexive. And legal writers do themselves a forensic disservice by failing to consider the choice. If "not one" is the salient concept, then the treatment should be singular. A writer in argument, especially, might be served best by the singular, or even by regressing "none" to its ancestor: for example, "Not one of the bystanders was capable of aiding the plaintiff" is a more potent declaration than "none were," because the former usage emphasizes the existence of multiple counterfactuals.

Here's another front page, from The Rhode Island Wave:

The Rhode Island Wave, Aug. 2023: "Liquor World: Now Open In It's Newest Location."

The subhede on this ad reads: "Now Open / In It's Newest Location."

This is an easy one, and it's definitely wrong. "It's" is a contraction for "it is." The headline does not say, "In It Is Newest Location." The "it's" is rather a possessive and should be "its."

I recognize that the Wave is a free advertiser, and the copy in question appears (horrifically, atop the front page) in an ad. In my book, which, we've established, is unrelentingly curmudgeonly, that doesn't let the editor off the hook. (Just ask The New York Times.) The fact that the Wave is a free advertiser might, though, explain the quality of the journalistic editing.

I see "its"/"it's" errors all the time. It's disheartening. I get that "it's" is initially confusing, because, especially in formal writing, we are accustomed to apostrophes appearing in possessives more often than in contractions. But then you learn the rule, you turn six, and life moves on.

At risk of exceptionalism, I believe that the American model of law as graduate education, open to a full range of undergraduate majors, is a strength of the American legal system. Our bar is populated by a gratifying diversity of knowledge bases, skill sets, and life experiences that are little known in the five-year LL.B. model.

At the same time, and as long as our four-year higher ed system permits disciplinary focus to the exclusion of liberal arts, we in legal education bear a burden to teach American law students how to speak and write in what is for most of them their native tongue.

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.

Student comparative law research spans sport, schools, drugs, recidivism, regs, copyright, crypto

He who learns teaches.

—widely cited as an Ethiopian or African proverb, the statement has parallels in other cultures and is sometimes paired with the Latin "qui docet discit," "he who teaches learns"

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Image by Gordon Johnson via Pixabay

Because we are reasonable people, we can all agree that Torts is the most important course in law school.

Comparative Law, however, takes the cake as the best course to teach. That's because one can teach it without exhaustive knowledge of the doctrinal subject matter. For no one knows the law of every jurisdiction in the world.

Thus, for me and my co-teacher, a supremely skilled embedded librarian, Comparative Law is a never-ending opportunity to learn from our students. And our students in spring 2022, as in past semesters, had plenty to teach us.

This is a selection of the ambitious paper topics that our Comparative Law students tackled in the spring.

United States, Vietnam. Firaas Z. Akbar, Free Enterprise Versus Freedom to Enterprise: A Comparative Analysis of Entrepreneurship Rights in the United States and Vietnam. Despite pronounced cultural and ideological differences between the republics of the United States and Vietnam, one of the goals shared by both societies is promoting entrepreneurship among their citizens. While not explicitly provided by the U.S. Constitution, free enterprise has impliedly been read into its language through a series of judicial decisions since the nation's founding, within a legal system where courts are bound to follow precedent. Vietnam enshrined a broad right to entrepreneurship into its constitution as part of an effort to transition to a more market-friendly economy. Yet constitutionalism under Vietnam's civil law system works differently, where rights require legislative substantiation to take effect. This analysis explores how Vietnam gives effect to this right and compares this model of promoting entrepreneurship to the U.S. approach.

United Kingdom (pre-/post- Brexit), Switzerland. Alessandro Balbo Forero, The Impact of Brexit on Football. There has been much debate and discussion regarding the UK exit from the European Union in 2020. Brexit had an impact on the sports industry as a whole, leading to debate and discussion by legal sport scholars on football, in particular, the English Premier League (EPL), and whether Brexit is good or bad. The unrestricted movement of players across the European Union is the catalyst for competition and player power. Prior to Brexit, players enjoyed the freedom of movement between EU Member States when their contracts expired. The current Governing Body Endorsement (GBE) requirements established after Brexit restrict player movement, and, thus, players are no longer able to sign with teams in the UK without first satisfying specific requirements that are tied to their respective countries' FIFA rankings. Although players are able to appeal to an exception panel, it is still not guaranteed to be granted a GBE. The Swiss model of player immigration would provide the UK with the best of both worlds. Brexit would still be in place, thus enjoying the benefits along with it, like unrestricted EU broadcasting regulations, and players would enjoy the freedom of movement once granted by the European Court of Justice in the Bosman ruling. The Swiss model satisfies both the FA and EPL, because highly qualified, homegrown players would continue to be produced while maintaining the multicultural, global product that is the EPL.

United States, England. Elizabeth Cabral-Townson, Using a Comparative Analysis of Special Education Disputes in the United States and England to Develop a Model that Better Serves Schools and Families.  Every country with a formal public education system has a responsibility to meet the needs of all enrolled students, including those with disabilities. Many countries have developed laws or regulations that describe their special education processes and procedures. In some instances, parents and school districts disagree about what a student with a disability requires to make progress in school. In these instances, there are several different dispute resolution techniques that can be an efficient way to resolve issues. Both the United States and England have developed laws and regulations specifically related to special education disputes. There are both similarities and differences to how the United States and England handle special education disputes, and elements from each country may be used to develop a more universal model. A preferred approach may be a consistently used three-tiered system that ensures the timely resolution of special education disputes using no-cost or low-cost options.

United States, Norway. Emma Clune, Prison Education as Means to Reduce Recidivism: A Comparative Analysis of the Effects of Prison Education Programs and Principles of Punishment in Norway and the United States. Access to prison education programs differs greatly between the United States and Norway. In the United States, prison education programs are not widely accessible due to issues such as lack of funding and resources. The programs that are available do not often prepare incarcerated persons for workplace environments after release. In Norway, where education is viewed as a fundamental right, all inmates are eligible to participate in education programs, and every prison facility provides access to academic and vocational programming. Norwegian prison education programs operate based on the "principle of normality," the idea that life inside prison should emulate life after release.  Research confirms that participation in educational programming while incarcerated reduces an offender's likelihood of recidivating by improving the offender's mental health and increasing the likelihood of employment after release. Emulating Norway's prison education programs and adopting the principles of Norway's penal system could be a means to reduce high recidivism rates and ultimately decrease the rapidly growing prison population in the United States.

United States, Canada. Judith Patricia Cruz Caballero, A Comparative Analysis of Refugee Law in the United States and Canada. The United States and Canada are world-leading nations for their international law policies. Refugees are a group of the population displaced from their home country due to war, discrimination, or violence. The United Nations created the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees to create a better humanitarian world. However, as the refugee crisis continue to increase over the next few years, the refugee policies of host nations will impact the support refugees receive. This paper examines refugees' procedures, immigration processes, and funding structures provided to refugees in both countries. In addition, the paper aims to compare each
nation's method of handling refugees in a time of international crisis. Finally, after analyzing each nation's policy areas, the paper provides recommendations to help increase the efficiency and effectiveness of refugee response in the United States and Canada.

Netherlands, Colorado. Ryan Gulley, Comparing the Legalization of Drugs in the Netherlands and Colorado: Recommendations for the Future. This paper compares the similarities and differences between the recent implementation of changes regarding drug use within the legal systems of the country of the Netherlands and the state of Colorado. The paper begins with a brief introduction to both systems. Following the introduction is a brief history of the criminalization of drugs within the two systems, as well as the reason for the changes that have been made in response. The current landscape of the legal systems will then be laid out, including where society stands today. I then examine the effects of those changes. The paper concludes by providing recommendations based on the lessons learned from the changes that were made in both areas.

United States, European Union. Austin Gutierrez, SOPA & PIPA vs. Article 17 "Directive on Copyright in the Digital Single Market." This paper compares the failed U.S. legislation, the Protect IP Act (PIPA) and Stop Online Privacy Act (SOPA), to the currently enacted Directive (EU) 2019/790, Directive on Copyright in the Digital Single Market, with a focus on Article 17. This paper goes through the history and then the past and current critiques of each legislation. This paper then creates a hypothetical bill using methodologies from both legislations. This paper has discovered that the current critics of U.S. online piracy protection believe that the U.S. should legislate in favor of website blocking. The EU critics believe that the authorization requirement establishes a mandatory requirement of general monitoring, which may be too much of a request from the website owners. In conclusion, this paper decides that it is in the best interest of the United States to let other nations develop and test online piracy protection while protecting current copyright holders through the use of website blocking for piracy focused websites. 

United States, China, Germany. Christopher Hampton, Comparative Analysis of Crypto Assets/Blockchain Regulation Between PRC & Germany to Form a Spectrum Based Guide for Impending U.S. Regulations. Crypto-assets and blockchain technology have created an array of regulatory responses globally, most of which address the risks associated with illicit activities, consumer protection, and financial stability. The choice of fitting crypto into traditional frameworks, modifying existing regimes, or forming bespoke regulations to address these risks inherently creates strategic variations across the board. However, this range of approaches creates a guiding spectrum for late movers, namely the United States, to survey during impending crypto-asset deliberations. By synthesizing Germany's and China's leading, yet antithetical, approaches to the same priorities, this paper reveals both sides of the spectrum (i.e., acceptance v. full ban), details how the respective strategies address the given concerns, and weighs perceived strengths and weaknesses of their enactments. Further, upon consideration of the United States' current regulatory uncertainty and objectives, recommendations are proffered in promotion of sustainable growth and innovation for the industry. Although the collective knowledge necessary for proper regulations is not solely within this analysis, adequate and sustainable decisions can only be made through considerations as equally expansive and flexible as the emerging industry of focus. Similarly limited, policymakers would be prudent to include market participants in their deliberations and promote international teamwork. Ultimately, regulatory clarity is necessary in any regard for the industry to truly evolve, though the path of evolution depends heavily on U.S. decisions. 

Germany, Russia.  Nicholas Hansen, A Comparative Examination of Environmental Regulatory Policy Models in the Federal Republic of Germany and the Russian Federation. Regulation of the economic activities of any sovereign nation can be foundational in determinations of status, power, and recognition in modern geopolitics. In modern environmental regulation theory, two primary characterizations of economic regulations are found. This analysis compares the use of "process-integrated" environmental policy, to the use of "end-of-pipe" environmental policy, and their relative benefits and hindrances. Process-integrated regulatory policy involves a more direct intervention in production processes and business action, whereas end-of-pipe regulatory policy involves the establishment of penalties for businesses that exceed their allotted carbon output, and violate industrial or automotive emission laws.  These policies have disparate impacts on the economic health of the sovereignties in which they are employed, differing levels of legal security for businesses operating in these sovereignties, and these impacts have been modeled and cataloged in this article.

This author posits that the time-frame around which either model is implemented, and the substantive form of these model regulations have an indirect impact on the long-term economic growth and propensity for foreign investment.  This hypothesis is most principally demonstrated by a comparative examination of the "process-integrated" model presently in use by the Federal Republic of Germany, and the "end-of-pipe" model presently in use by the Russian Federation. This article seeks to explain the characterization of the German and Russian regulatory models as an "end-of-pipe" or "process integrated" model and the statistical and legal evidence that supports this conclusion. In addition, Explanations of the German and Russian environmental regulation and their relative impact on the economic health and growth of their respective sovereignties are given.

Israel, Palestine. Rachel Kilgallen, The Unique Legal Systems of Israeli Settlements. The Israeli-Palestinian conflict is one of the world's most enduring conflicts, the Israeli occupation of the West Bank and the Gaza Strip reaching 55 years. Within Israeli settlements, where Israelis and Palestinians must coexist, an abounding number of controversies have arisen. One such controversy revolves around the legal system adopted within these settlements. Upon Israel's occupation of the West Bank and Gaza (along with the Sinai Peninsula and Golan Heights) in June 1967, the Israeli military immediately established military courts in both territories in order to try offenses harming security and public order. Technically speaking, Israeli military and civilian courts hold "concurrent" jurisdiction to try Israelis for offenses related to security. The policy for the last four decades, however, has been to refrain from prosecuting Israeli civilians in the military system, despite critiques that doing so constitutes partial annexation of occupied territory. The result is that Israeli and Palestinian neighbors accused of committing the very same crimes in the very same territory are arrested, prosecuted, and sentenced in drastically different systems—each featuring staggeringly disparate levels of due process protections. The International community seems to be in concurrence that Israel's actions regarding its settlements violate international law on many levels. At this point in time, all measures taken against Israel, in consequence, have been in vain. The longstanding conflict between Israel and Palestine endures.

United States, Germany. Samantha Rapping, The Psychological Toll of Being Prosecuted as an Adult: A Comparative Analysis of Juvenile Prosecution and Incarceration in the United States and Germany. The United States has one of the most complex criminal justice systems, which significantly differs from other systems in the world, specifically Germany. One prominent difference between these two countries is how they handle juvenile offenders. The United States focuses merely on punishment and incapacitation, whereas Germany focuses on education and rehabilitation. As a result of the harsh treatment that juvenile offenders endure, such as frequent sexual and physical abuse, their mental health severely plummets. Juveniles are at a higher risk for suicide, depression, and anxiety. As a consequence, juvenile offenders are likely to re-offend post-release. Germany’s recidivism rates are extremely low as a result of the educational approaches and opportunities that are available to juvenile inmates such as therapy, metalworking, farming, etc. The positive reinforcement that occurs while juveniles are incarcerated leads to an increase in a juvenile inmates overall attitude and positive outlook for the future. The United States should adopt Germany's educational approach to its juvenile offenders.

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Students: If you spy any errors here, don't hesitate to contact me for correction. If you were in this class and I failed to include you here, that's because I don't have an abstract from you. Please send one, and I'll be happy to add it.

Publishers and employers: Contact me if I can help put you in touch with any of these promising law students, some of whom are now recent grads!

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Comparative law papers examine fin reg, human rights, environment, labor, piracy, sovereignty, and more

Image by Gordon Johnson via Pixabay

Lately, I've been part of interviewing faculty candidates.  In that awkward part of the interview when the interviewee gets to ask questions, and the interviewee really wants to know, "What are you going to pay me?, because we could put an end to this charade right now if you're not serious," but doesn't ask that for fear she will look like it's only about the money, and really, why fear that? would you work for free? I wouldn't; there's a word for that, but the interviewee asks instead some dopey question to make the interviewer feel good, along the lines, "How can it be that you are so fabulous?," the subtext of which is not, but should be, "you, who really doesn't come off as bright or spirited enough to have pulled off fabulous," I'm wearing a hoodie after all, even if we are on Zoom, an interviewee recently asked me, "What do you like most about your job?"

Well, you asked, so I answer:  I never tire of seeing the ingenuity, inventiveness, and range of interests and life experience that law students bring to the table.  And a seminar as wide-ranging as Comparative Law gives the most ingenious and inventive a chance to shine.  This spring it's been my privilege to be informed, educated, and thought-provoked by a range of papers, and I am eager to share here a selection of abstracts, with authors' permission.  These students have outdone themselves in a challenging course, despite an ogre of a professor and limited access to resources during the pandemic.  Filled with (I hope, authentic) pride, I congratulate each and every one.

Laura Z. Copland, Understanding Human Trafficking: A Comparative Analysis of the Prosecution, Protection, and Prevention Laws in the United States and Honduras.  Human trafficking is a high-profile global issue, generating billions of dollars at the expense of millions of victims. Trafficking occurs to minors and adults in urban and rural communities. Victims have diverse socioeconomic backgrounds, varied levels of education, and can be documented or undocumented. Traffickers target victims using tailored recruitment methods they find effective in compelling individuals to fall into exploitation. In recent years, both the United States and Honduras have attempted to provide legal redress to the lack of focus placed upon the effects of human trafficking in legal scholarship. Anti-human trafficking legislation in these jurisdictions has differed in their specific approaches. Still, both have sought to implement prosecutorial guidelines to support the execution of the three main pillars of the fight against human trafficking. These three pillars are prosecution, protection, and prevention.  This note compares the similarities and differences in the attainment of the three pillars by both jurisdictions. Moreover, this note illustrates that despite trafficking’s tremendous impact, most people in positions of authority in both the United States and Honduras still need to learn about what human trafficking is, how to identify it, and how to combat it effectively.

Dolapo D. Emmanuel, The Inadequacy of the Insanity Defense in the United States and England.  According to Our World Data, as of 2018, nearly one billion individuals globally suffer from a mental health condition. Conversely, media portrayals of mental health conditions are both comparatively rare and largely inaccurate. Though insanity is a legal concept rather than a clinical condition, the preceding statement applies. Dramatizations of legal insanity have both obfuscated and marginalized the concept such that even individuals with academic or professional legal footing are confused about its place in criminal law. This confusion in turn fosters perceptions that may not be accurate. One of the most popular claims about the insanity defense is that it is a powerful tool criminal defendants employ to escape the legal consequences of their criminal conduct. To determine the extent of this alleged power, this paper aims to discern the adequacy of the insanity defense in the United States and England based on three factors: the congruency between the medical and legal perspective of mental illness, the utility of required expert testimony, and the stability of the defense’s place in criminal law. As such, it seems, despite the facts that there has been more evolution in the insanity defense’s standard in the United States, and that the standard is more difficult to satisfy in England, the insanity defense is more effective in England than it is in the United States. However, this paper identifies continuing inadequacies in both countries.

Sydney Anne Goldstein, The Force of Discipline: Laws of Good Order and Discipline of the Armed Forces of the United States and the Russian Federation.  From the primordial beginnings of combat to the ongoing conflicts in the Middle East, factions of humanity continue to assemble and take up arms to defend their way of being or vindicate their honor. Of course, there is strength in numbers along with the breadth and depth of their capabilities, but the real magnitude of military power comes from the discipline and conduct of those serving. Out of the countries currently grasping for global influence, the United States and the Russian Federation have climbed to the highest echelons of military power on the international stage. But with this elevated stature comes the pressure to maintain diplomacy coupled with the indelible friction of conflict.  In this paper, I survey the historical development of military jurisprudence of the United States and Russia to compare their legal institutions' impact on military power.

Richard Grace, The Modern Myth of the Efficient Market Hypothesis. The turn of the century wave of innovative technology companies, colloquially “FAANG” (Facebook, Apple, Amazon, Netflix, and Google), set in motion a revolution of the global economy.  Trade is more efficient than at any point in human history, as are the global financial markets.  Technology has expanded the reach of the instrumentalities of global finance to previously incomprehensible levels, allowing anyone with a smartphone to connect to stock, currency, bond, and commodities markets, and to execute trades anywhere you have a cell signal.  This realm, previously restricted to professional brokerages and traders, has been opened to the everyday individuals.  These individuals have come to be known as “retail,” or non-professional investors.  In response to these changing market conditions, large institutional brokerages have begun to market to retail investors, and numerous smaller brokerages have been formed with the sole purpose of providing the “little guy” access to the world’s markets.  The school of minnows can now play in uncharted territory, in the deep end alongside the whales.  This article aims to explore the impacts of the expanding role of retail investors on the global financial market.  Unsurprisingly, the changing market has resulted in many changes in the law.  The focal points of interest will be the responses in the law to the surge in retail trading in the United States and the United Kingdom.  As both jurisdictions have operated under the same common law tradition, the comparative value of juxtaposition of the present responses should provide useful comparisons as to the efficacy of certain laws, rules, and regulations passed to precipitate issues perceived by the global market.  I will first consider the frameworks under which retail investors operate; the regulations and laws that make up the rules of the game.  These rules include the "Pattern Day Trader Rule," and the trading of security derivatives in the form of option contracts.  Second, I will evaluate changes in monetization of retail trading at the brokerage level, most notably, the "Payment for Order Flow" system, originally devised by the infamous Bernie Madoff.  The financial market is inherently global, and therefore, changes in the law and in regulations within the United States impact all retail investors, regardless of their country of origin.  The result of this global system is that a routine practice in the U.S. markets may be completely prohibited within the U.K.’s, and vice versa; the same securities are being traded with two different sets of rules governing the transactions.

Brooke Loneker, Designer or Dupe? Assessing the Development of the United States: A Comparative Analysis Between Single-Use Plastic Recycling Laws Established in the United States and Perú.  In what millennials might describe as a “Freaky Friday” scenario, this paper explores the notion of a "first world" country following in the steps of a "third world" country’s national legislation banning single-use plastics. In December of 2018, the nation of Perú passed and quickly enforced Law No. 30884, speaking directly to the prohibition of unnecessary or non-recyclable single-use plastics, which, under the civil law system, made the law applicable to all provinces, regions, and the Province of Lima. The United States, in contrast, with a federal legal system, does not have a national legislation that regards single-use plastics. California, a leading state among the United States in environmental regulation, has passed state laws regarding single-use plastic bans. This paper compares Perú’s Law No. 30884 and California’s Senate Bill No. 54, as amended in 2020. This paper focuses on the cost of enacting this legislation, the revenue opportunities provided through enacting this legislation, and the similarities of Perú's and California’s laws. In understanding these comparisons, this paper argues that implementing a structure that is successful in a country such as Perú would be cost efficient, promising to the state/federal budget, and would promote the health and general welfare of the U.S. population.

Ryan Manning, Counter-Piracy: A Comparative Analysis on Two Multinational Organizations’ Fight Against Piracy.  As piracy spiked around the horn of Africa, several organizations and countries sought to combat it. Although a prominent actor in counter-piracy efforts, NATO was not the only organization making strides to deter this maritime threat. Although initially reluctant, member states of the Shanghai Cooperation Organization (SCO), specifically China, made efforts to alleviate a dangerous situation. By addressing two different responses to the threat of pirates surrounding the horn of Africa, this paper compares NATO’s anti-piracy operations with China’s through the SCO. The paper first introduces what drove the pirates to start hijacking merchant vessels and the evolution of their tactics, causing them to become a threat to maritime security. Following that, NATO is analyzed, describing how it became involved in counter-piracy; then, the SCO’s lack of response as an alliance and China’s efforts to protect Chinese vessels from hijackings. Last, the missions of NATO and the SCO are analyzed. NATO’s integration of outside forces and cooperation has proved to be a beneficial tactic in counter-piracy operations, and the SCO was reluctant to involve itself in the operations. Disagreements among member states of the SCO prevented organizational cooperation, in turn, causing China to handle the threats on imports and exports unilaterally. Whereas NATO had extensive maritime experience, China used counter-piracy operations to develop its capabilities and provide support for vessels not of Chinese origin. Further, where NATO freely cooperated with organizations and states outside of its members, China was initially reluctant to provide support and struggled to allow other members to work alongside.  Yet as declines in pirate attacks have been related to multinational cooperation, China’s participation with NATO and other operations has become a crucial contribution to further deterrence of piracy.

Brett Mueller, Animal Diplomacy.  In a time when common ground between the United States and China seems to be eroding, one area of shared goals could provide fertile ground to help ease tension: wildlife. While both countries seek to preserve naturally occurring creatures, historic practices and differing viewpoints on just how to achieve that goal have left the picture of wildlife protection looking vastly different in each. While the approaches may be different, different is not synonymous with ineffectual (or wrong), and it is important to understand the underlying complexities that exist in each society in order to chart a reasonable path forward. Of course, the relationship between natural creatures and mankind has developed over many centuries, and will continue its indefinite transformation as time goes on. Instead of casting judgment from afar, the United States and China would be wise to learn from each other’s successes and failures. Regardless of other sources of disagreement, when it comes to wildlife preservation it is time for the two world superpowers to put on a unified front to set a strong example for the rest of the world.

Sara O'Brien, A Comparative View of Irish and Israel Citizenship Laws as Products of Settler-Colonialism.  Irish and Israeli citizenship laws are compared by activists because of their seeming similarity; they both provide citizenship to those born abroad under certain conditions or circumstances. However, their approaches to citizenship are not as similar as they seem. Each nation has imposed certain restrictions on claiming citizenship, and as we see, those restrictions and limitations effectuate particular purposes.  The purpose of this paper is to explore how the laws differ, and how they work to accomplish particular political goals. The respective approaches appear to be motivated either in moving beyond a settler-colonial regime, as in Ireland, or continuing one, as in Israel. By examining the Israeli Citizenship Act (1952) and Law of Return closely, a stark difference in how people of different religion are treated becomes clear. In practice, the laws make it easier for foreign nationals of the Jewish faith to immigrate to Israel, while making it difficult for Palestinians to gain citizenship as both a practical and political manner. In Ireland, the post-settler-colonial citizenship scheme is visible in the relative religious and ethnic neutrality of the laws. Ireland allows for descendent citizenship provided the applicant meets a handful of requirements, and acquisition is structured in a manner that does not consider religion, race, or national origin, and does so explicitly to make Ireland more inclusive after the Good Friday Agreement was ratified.  Together, they provide examples of how active settler-colonialism can manifest in citizenship laws, as well as how citizenship laws can be used to uphold the ideals of post-colonial governments.

Spencer K. Schneider, The Necessary Evil of Environmental Federalism in the U.S. and Brazil.  Brazil and the United States are respectively the fifth and third largest countries on earth. As a result, both countries are composed of many diverse environments, from forests to waterways, and these environments require careful management and conservation. But both countries suffer from inconsistent environmental regulation that is primarily due to the frameworks of federalism that shape the relationships among each country’s national, state, and local governments. These frameworks of shared power are crucial to effective environmental regulation and protection, but, these frameworks are also at the root of some of environmental policy’s largest problems today. Understanding how federalism functions in environmental policy is crucial to solving some of the biggest problems in environmental regulation that exist today.

Ricardo J. Serrano R., Jíbaro Nation: Las Crónicas de la No Incorporación (Jíbaro Nation: The Chronicles of Non-incorporation).  Puerto Rico en los últimos quinientos años ha tenido una compleja existencia colonial que todavía se ve plasmada en el presente. En este estudio investigamos más profundamente el efecto de la Carta Autonómica en el estatus colonial de Puerto Rico bajo España, sus limitaciones, y existencia de una noción de soberanía introducida por los líderes nacionalistas de Puerto Rico. También, luego del 1898 examinamos la integración de Puerto Rico como territorio no incorporado a los Estados Unidos y como este proceso de integración ha afectado a Puerto Rico y su estatus colonial. Al mismo tiempo, se hace un contraste entre el Puerto Rico bajo la Carta Autonómica de 1897 y el Puerto rico bajo los Casos Insulares y el Acta Foraker para comparar los derechos legitimados por cada sistema. Por último, se establece un esquema que comprende el trato de Puerto Rico desde el 1898 hasta la ratificación de la asamblea constituyente de 1951.  (Author's translation: Puerto Rico in the last five hundred years has had a complex colonial existence that is still embodied in the present. In this study we investigate more deeply the effect of the autonomic charter on Puerto Rico's colonial status under Spain, its limitations, and the existence of a notion of sovereignty introduced by Puerto Rico's nationalist leaders. Also, we examine the integration of Puerto Rico, after 1898, as a territory not incorporated into the United States and how this non-integration has affected Puerto Rico and its colonial status. At the same time, a contrast is made between Puerto Rico under the 1897 Autonomy Charter and under the Insular Cases and the Foraker Act to compare the rights legitimized by each system.  Finally, a scheme is established comprising Puerto Rico’s treatment from 1898 until the ratification of the 1951 Constituent Assembly.)

Matthew R. Stevens, Collectivism, Individualism, and Their Respective Costs of Human Life During the Covid-19 Pandemic.  On the final day of 2019, December 31, the World Health Organization discovered a media statement from the Wuhan Municipal Health Commission describing new cases of “viral pneumonia” in Wuhan, People’s Republic of China. One year later, this viral pneumonia would claim the lives of two million souls. While almost every country and human on the planet has experienced the COVID-19 Pandemic in one way or another, disparate impacts have arisen throughout the globe. One curiosity inducing dichotomy is that of South Korean and the United States, suffering 1,700 deaths and 551,000 deaths, respectively. This paper dives into a comparative study of the COVID-19 responses of South Korea and the United States through the scope of collectivism and individualism. This paper explores whether the respective responses have direct ties to the country’s individualistic or collectivist culture, and if any connection can be drawn to the relative success of one cultural response over the other.

Jhoanna Sylio, Reexamining the Seasonal Agricultural Workers Program (SAWP) and Possible Improvements Based on the Administration of the H-2A Temporary Agricultural Workers Program.  Temporary agricultural foreign workers are admitted to the United States and Canada through guest worker programs to perform low-skill seasonal or temporary agricultural labor.  Foreign workers fill jobs that farmers are otherwise unable to fill with a local workforce despite availability of jobs and requirement of very little formal education. In the United States, employers are able to bring in foreign workers from 80 countries to fill temporary agricultural work under the H-2A program.  In Canada, employers are able to source seasonal workers from Mexico and 11 participating Caribbean countries under the Seasonal Agricultural Worker Program (“SAWP”). The paper examines the legal framework of the H-2A program in the United States and the administration of the H-2A program in North Carolina, specifically. This examination serves as a basis of comparison with the administration of SAWP in Canada, focusing on Ontario. The paper overviews the guest worker programs in the American and Canadian contexts, and  the important role migrant agricultural workers play in ensuring food security in these labor-destination countries. The paper concludes by identifying measures that could be adopted in Ontario to effectively increase protections and  improve conditions experienced by migrant agricultural workers under the SAWP.

Thomas D. Aaron Wazlavek, The Pond Separates Cultures But Not Values: A Comparative Look At the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment.  The differences and similarities of the United States common law concept of “right to work” and the modern development in France of the right to withdraw labor, after the “yellow vest” movement in 2018, demonstrate a parallel diminution of workers’ rights. These changes are motivated by the same values inherent within capitalism that are superimposed through the law. This article analyzes the social and legal context in both countries that demonstrates that the superimposition of these values through law is a continuing modern western trend. The key difference is that, while the French model is designed to decrease the pressure for strike actions by workers, it also serves as a protection to workers, as compared with the American model, which largely exists merely as a tool to remove workplace protections by substantially altering the terms and conditions of employment. Further, this article demonstrates that these concepts are both divergent and convergent in terms of core shared values and the peripheral aspect of laws setting cultural norms.  This article then concludes through comparative analysis that while the French right to withdraw labor is a product of legislative supremacy, and the American view within the common law is that at-will employment is the standard, the French model is a product of generations of social negotiations. The American model is a product of the easily swayed influences within the common law that allow a new legal theory with little to no precedential value at the time of its proposal to be adopted in sweeping fashion with very little civil discourse.

National and U.S. state flags courtesy of Flagpedia.net.  Puerto Rico historical flags from Welcome to Puerto Rico.  Ontario flag from Britannica.com.  NATO and SCO seals from Wikimedia Commons.