University of Arkansas at Little Rock: UALR Bowen Law Repository

Gallant, Kenneth S.

Jenkins, Sarah Howard

University of Arkansas at Little Rock Law Review 
Volume 36 Issue 2 Article 1 
2014 
Introduction - Papers From the 2013 American Society of 
Comparative Law Annual Meeting 
Kenneth S. Gallant 
University of Arkansas at Little Rock William H. Bowen School of Law, ksgallant@ualr.ed 
Sarah Howard Jenkins 
University of Arkansas at Little Rock William H. Bowen School of Law, shjenkins@ualr.edu 
Follow this and additional works at: https://lawrepository.ualr.edu/lawreview 
 Part of the Comparative and Foreign Law Commons, and the Conflict of Laws Commons 
Recommended Citation 
Kenneth S. Gallant and Sarah Howard Jenkins, Introduction - Papers From the 2013 American Society of 
Comparative Law Annual Meeting, 36 U. ARK. LITTLE ROCK L. REV. 149 (2014). 
Available at: https://lawrepository.ualr.edu/lawreview/vol36/iss2/1 
This Introduction is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It 
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 149 
INTRODUCTION²PAPERS FROM THE 2013 AMERICAN SOCIETY 
OF COMPARATIVE LAW ANNUAL MEETING 
Kenneth S. Gallant and Sarah Howard Jenkins  
In October of 2013, the UALR William H. Bowen School of Law was 
honored to host the Annual Meeting of the American Society of Compara-
WLYH/DZ$6&/7KH$6&/LVWKH8QLWHG6WDWHV¶OHDGLQJRUJDQL]DWLRQGe-
voted to the comparative study of law, a vibrant and growing field. Tradi-
WLRQDOO\ ³comparative lDZ´ LV GHILQHG DV WKH VWXG\ RI WKH VLPLODULWLHV DQG
differences of laws of different nations. Today, however, it includes the 
comparison of national and international law²particularly in areas such as 
criminal law where a body of international criminal law is growing up 
alongside national criminal law²and comparisons of national law with the 
laws or customary rules of trade promulgated by various international or-
ganizations. Comparative law also includes the study of the relationship 
between formal law²such as governmental systems²and informal, social, 
religious, and other systems of law-like rules and behaviors that exist in 
every society. 
The area where comparative law is of the most immediate practical use 
to lawyers and judges is the field of conflict of laws. A litigator or a transac-
tional lawyer, whether addressing an interstate or transnational matter, must 
understand the differences among the legal regimes that may apply to her or 
his client and the different methods that the various interested states or na-
tions will use to resolve conflicting rules of law. 
Given the importance of this area of the law, Bowen School of Law 
proposed Comparative Conflicts of Law as the overall theme for the 2013 
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both the study of law and the practice of law in Arkansas and the United 
States. 
 
  Bowen School of Law is represented in the American Society of Comparative Law 
E\WZRIDFXOW\PHPEHUV3URIHVVRU.HQQHWK6*DOODQWLV%RZHQ/DZ6FKRRO¶V'HOHJDWHWR
the ASCL. Sarah Howard Jenkins, Charles C. Baum Distinguished Professor of Law, is Bow-
HQ¶VGHVLJQDWHG(GLWRUIRUWKH$6&/¶V$PHULFDQ-RXUQDORI&RPSDUDWLve Law. Both served 
as co-chairs of the 2013 annual meeting and are grateful to Deans John M. DiPippa, Paula 
Casey, and Michael H. Schwartz for the financial and staff support provided for organizing 
and conducting the meeting. We would also like to thank staff administrative assistants: 
Colleen Godley, Vinnie Francis, Terry Harrison, Jennifer Maxwell, and Haley Walker; Assis-
tant Dean Wanda Hoover and former Communications Director Tonya Smith; Interim Li-
brary Director Kathryn Fitzhugh and Library Coordinator Tina Medlock. 
 
150 UALR LAW REVIEW [Vol. 36 
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the 2013 meeting. Together with the ASCL Annual Meeting Committee, 
chaired by Professor Ralf Michaels of Duke University, we developed a 
program centered on that theme. In addition to the general theme of Com-
parative Conflict in Laws, the meeting featured a Hot Topics panel entitled 
Privacy, Transparency and Surveillance in the Age of Big Data and a panel 
of papers submitted by Younger Comparativists²comparative law profes-
sors who have been teaching for less than ten years. 
In this issue, we present two outstanding papers from the 2013 ASCL 
Annual Meeting. The first addresses the overall theme of the meeting, Com-
parative Conflict of Laws: Globalization and Private International Law in 
Commonwealth Africa, by Richard Frimpong Oppong, Assistant Professor 
of Law at Thompson Rivers University in Kamloops, British Columbia, 
Canada. The second is taken from the Hot Topics Panel on Privacy, Trans-
parency and Surveillance in the Age of Big Data: The Snowden Revelations, 
the Transatlantic Trade and Investment Partnership and the Divide between 
U.S.-EU in Data Privacy Protection, by Ioanna Tourkochoriti, Wertheim 
Fellow at Harvard Law School. 
3URIHVVRU2SSRQJ¶V FRQWULEXWLRQ GHPRQVWUDWHV WKH LPSortance of pri-
vate international law²DQRWKHU WHUPIRU³FRQIOLFWRIODZV´²principles ap-
plied by courts, to regional economic integration on the continent of Africa. 
He focuses on how tKHUHFRJQLWLRQRIRQHQDWLRQ¶VFRXUWMXGJPHQWVE\VXr-
rounding nations is vital for private contracting parties to trust that their 
rights will be respected in both of their nations. He points out the im-
portance of recognition of judgments to successful regional economic inte-
gration regimes such as the European Union and MERCOSUR. 
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common-law African countries, to participate in the political processes and 
arrangements necessary to harmonize conflict of laws regimes is responsible 
for the meager levels of commerce among its nations as opposed to trade 
with more developed but more distant countries. He points out, however, 
that the courts of some common-law African countries have begun to deal 
with issues of private international law rules and harmonization of laws 
within the limits of the statutory powers of African countries. He proposes a 
way forward for increased participation in legal systems in common-law 
Africa to improve legal and economic cooperation in the region in order to 
promote growth. 
'U 2SSRQJ¶V ZRUk might appear far removed from the interests of 
American lawyers, except those whose clients trade with African businesses 
or who represent African businesses and individuals. However, there are 
two indirect lessons for the United States in his work. The first is that his 
work truly demonstrates the importance of the Full Faith and Credit Clause 
of the United States Constitution in unifying a continental-scale economy. In 
2014] INTRODUCTION 151 
the absence of such a unifying legal text, legal and commercial relations 
between the countries of common-law Africa are difficult. 
The second is that the current incoherence among the states of the 
United States concerning choice of law systems can have deleterious conse-
quences in the long run. His paper suggests that conscious attention to unify-
ing or harmonizing choice of law rules may be necessary to this task. Within 
the American legal system, this can be done by parallel state legal develop-
ment VXFK DV WKH 8QLIRUP &RPPHUFLDO &RGH¶V FKRLFH RI ODZ SURYLVLRQV
through Congressional action under the Full Faith and Credit Clause of the 
Constitution, or through joint State-Federal cooperation under the Interstate 
Compact Clause. 
,Q FRQWUDVW'U7RXUNRFKRULWL¶V SDSHU SURYLGHV D FRPSDUDWLYH DVVHVs-
ment of data privacy in the United States and the European Union, focusing 
mostly on data held in private hands. She begins with the context of negotia-
tion for freer trade between the United States and Europe pursuant to the 
current Transatlantic Trade and Investment Partnership negotiations. This is 
of particular interest in Arkansas, the home of Acxiom, Inc., one of the 
ZRUOG¶VODUJHVWFROOHFWRUVDQGSURFHVVRUVRILQIRUPDWLRQIRUFRPPHUFLDODQG
marketing purposes. 
She develops the differences between United States and European Un-
ion laws concerning the collection, processing, and usage of data about pri-
vate persons. She addresses both governmental and private data collections 
but focuses on the latter. 
Dr. Tourkochoriti identifies a vital difference between American and 
European attitudes on data collection, processing, and retention. The Ameri-
can legal attitude towards data collection and usage embodies the same lib-
ertarian presumption seen in American law generally: data collection and 
usage is permitted unless a there is a rule against it. The European legal atti-
tude, based in the European Convention on Human Rights, is that collection 
and usage of personsal data are prohibited, as a breach of privacy, unless 
such collection and usage is allowed by law. Moreover, the United States 
permits much greater latitude for parties, including large collectors of data 
to contract out of limitations on data usage. This difference has a similar 
origin: the American emphasis on freedom of contract versus the European 
emphasis on the value of privacy as a positive human value, which may be 
protected by making it non-waivable in some circumstances. Certain skepti-
FDO$PHULFDQVPLJKWDGGWKDW³ZDLYHUV´RISULYDF\LQWKH8QLWHG6WDWHVKDYH
essentially become contracts of adhesion. It is effectively impossible to get 
products and services on the internet, or even internet service itself, without 
allowing the service provider to use personal information for marketing pur-
poses. Dr. Tourkochoriti delineates how these differences in attitude have 
developed into vastly different regimes of private data collection. 
152 UALR LAW REVIEW [Vol. 36 
Finally, Dr. Tourkochoriti identifies the points that will need to be ne-
gotiated between the United States and Europe in order for the Transatlantic 
Trade and Investment Partnership talks to succeed. In particular, she identi-
fies ways in which harmonization of privacy rules might occur. Using com-
parative law technique, Dr. Tourkochoriti has illustrated not only differences 
between the European and American the data privacy laws but has also giv-
en a convincing hypothesis of the reason for this difference and identified a 
way that these differences might be resolved. 
'U7RXUNRFKRULWL¶VSDSHUOLNH3URIHVVRU2SSRQJ¶VSDSHUKDVDQLQGi-
rect lesson for regulators and conflict of laws scholars, a lesson about the 
limits of conflict of laws. One might try to use conflict of laws rules to re-
solve the U.S.-EU differences over data privacy. Strict regulation of juris-
diction over data generated in the EU and in the United States, might allow 
entities which collect, analyze, and use data in each place to understand their 
duties and responsibilities. Such a jurisdictional wall, however, would likely 
frustrate at least some of the integrative goals of the Transatlantic Trade and 
Investment Partnership talks. Thus we have a good example of a difference 
between national, U.S. domestic, and supra-national, EU, laws which cannot 
be adequately dealt with by even the best private international law, conflict 
of laws, system. The U.S. and the EU must instead work to harmonize the 
substance of their data privacy regimes. Although the comparative law pro-
cesses can identify the differences and similarities between legal regimes, it 
is the nations themselves that must work to harmonize the disparate values 
and standards reflected in their laws. 


English

Introduction - Papers From the 2013 American Society of Comparative Law Annual Meeting

Oppong, Richard Frimpoong

Globalization and Private International Law in Commonwealth Africa

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Llanes, Yvan

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