Abstract:
This book chapter is based on a larger project with Samuel Estreicher in which we examine in detail the unjust dismissals regimes of numerous countries. The study of these laws goes beyond the text of the relevant statues and cases, as it uses input from foreign employment law practitioners and available data — particularly claimants’ success rates and average remedies — in an attempt to observe how the laws actually operate in practice.
The conclusion drawn from this study challenges the common “American exceptionalism” premise that argues that adopting a just cause rule would place the U.S. in the same company as the rest of the world. It is true that most countries provide employees with more protection against unjust dismissals than the U.S. But even on paper, the protections in many of the surveyed countries are often weaker than the typical American view of just cause protection assumes. Moreover, the actual practice in these countries frequently reveals even less protection, particularly when remedies are taken into account. These considerations make American dismissal law, although certainly weaker, appear less than exceptional.
In addition, the variances in unjust dismissal regimes suggest that many economic studies of employment protection fail to account for the full range of differences that exist among countries. For instance, a study on the effect of employment regulation on a country’s or firms’ economic performance should not rely solely on the laws as they are written because similar looking laws may have substantially different effects due to their available remedies or other operational disparities. Thus, studies should do more to account for these differences or, where appropriate data are unavailable, at least acknowledge that limitation.
Hirsch, Jeffrey M., A Comparative Perspective on Unjust Dismissal Laws (2012). in Global Labor and Employment Law: Reports from Law Offices Worldwide (Samuel Estreicher ed.) 2012.
Purpose
Wednesday, July 11, 2012
Deference in Investment Treaty Arbitration: Re-Conceptualizing the Standard of Review Through Comparative Public Law
Abstract:
The standard of review to be applied by investment treaty tribunals when reviewing host state conduct is a crucial, but still insufficiently analyzed issue. Although tribunals frequently make reference to “deference” as the applicable standard, the criteria they apply to concretize that concept remain uncertain and little predictable. What is more, the conceptual foundations of granting deference to host states are opaque. The present paper focuses on these foundations and argues that they are intrinsically connected to how investment treaty arbitration is qualified as either a form of commercial arbitration, a means to settle disputes under public international law, or as an internationalized form of judicial review in public law disputes. Siding with the latter, the present paper proposes to conceptualize the standard of review within a separation of powers framework that fuses domestic and international legal considerations in allocating power between states and arbitral tribunals. Within this framework, considerations originating from both international dispute settlement and comparative public law interact to determine and concretize the standard of review.
Schill, Stephan W., Deference in Investment Treaty Arbitration: Re-Conceptualizing the Standard of Review Through Comparative Public Law (June 28, 2012). Society of International Economic Law (SIEL), 3rd Biennial Global Conference.
The standard of review to be applied by investment treaty tribunals when reviewing host state conduct is a crucial, but still insufficiently analyzed issue. Although tribunals frequently make reference to “deference” as the applicable standard, the criteria they apply to concretize that concept remain uncertain and little predictable. What is more, the conceptual foundations of granting deference to host states are opaque. The present paper focuses on these foundations and argues that they are intrinsically connected to how investment treaty arbitration is qualified as either a form of commercial arbitration, a means to settle disputes under public international law, or as an internationalized form of judicial review in public law disputes. Siding with the latter, the present paper proposes to conceptualize the standard of review within a separation of powers framework that fuses domestic and international legal considerations in allocating power between states and arbitral tribunals. Within this framework, considerations originating from both international dispute settlement and comparative public law interact to determine and concretize the standard of review.
Schill, Stephan W., Deference in Investment Treaty Arbitration: Re-Conceptualizing the Standard of Review Through Comparative Public Law (June 28, 2012). Society of International Economic Law (SIEL), 3rd Biennial Global Conference.
Thursday, July 5, 2012
Comparative Law and the Quest for Optimal Rules on the Transfer of Movables for Europe
Abstract:
The drafters of Book VIII Draft Common Frame of Reference (DCFR) have devoted an impressive amount of time and energy in collecting and publishing comparative data with regard to the existing property law within all Member States of the European Union, and in particular with regard to the subject matter of that Book: acquisition and loss of ownership of movables. This in itself suggests that comparative research played an important role in the drafting process, and this impression is enhanced by the abundance of comparative references and notes in the official Comments to Book VIII. However, the fact that the drafters made an extensive study of the relevant property law of every European legal system does not imply per se that the outcome of their comparative research was taken as guiding in the establishment of the DCFR rules.
In order to gain a better insight into the character of the rules of Book VIII, this contribution seeks to answer the question whether comparative arguments really weighed heavily in the drafting of Book VIII: is the ‘comparative activism’ of its drafters a manifestation of a determination that common or even majority solutions should be the basis of the model rules to be proposed, or did the drafters feel free to propose novel rules even if these were contrary to what applies in most European countries, according to the comparative data they collected and presented themselves? ...
Salomons, Arthur F., Comparative Law and the Quest for Optimal Rules on the Transfer of Movables for Europe (June 8, 2012). Amsterdam Law School Research Paper No. 2012-72; Centre for the Study of European Contract Law Working Paper Series No. 2012-09; European property Law Journal 2012(3), (forthcoming).
The Good-Faith Purchaser: Markets, Culture, and the Legal System
Abstract:
A key legal institution is the set of rules balancing theft with markets as alternative means to transfer property rights. Even if all legal systems forbid theft, different societies provide different ex post solutions to the conflict arising between the original owner and the good-faith buyer of a stolen good. These rules range from the full protection of the original owner's property right to the full protection of the buyer's reliance on contract. In situations in which only intermediaries can transfer goods by using either theft or markets, society should condone transfers occurred through theft when innocent buyers value the good more than original owners and reverse them otherwise. We show that, in the first case, provided that the difference between the owner's and the buyer's valuation is not too wide, there are separating equilibria in which moral intermediaries --- i.e., those for whom theft entails a sufficiently high moral cost --- signal their proper title by charging higher prices. In the second case, the market shrinks since moral intermediaries refrain from stealing. In the most likely case, in which buyers tend to value the good more than original owners, the extent of protection of the owner increases (decreases) with the share of moral intermediaries (the quality of the legal system) because of the lower probability of theft (lower impact of public enforcement). Instrumental variables estimates based on a cross section of 77 jurisdictions are consistent with this prediction.
Dari-Mattiacci, Giuseppe, Guerriero, Carmine and Huang, Zhenxing, The Good-Faith Purchaser: Markets, Culture, and the Legal System (June 20, 2012). Amsterdam Law School Research Paper No. 2012-70; Amsterdam Center for Law & Economics Working Paper No. 2012-01.
A key legal institution is the set of rules balancing theft with markets as alternative means to transfer property rights. Even if all legal systems forbid theft, different societies provide different ex post solutions to the conflict arising between the original owner and the good-faith buyer of a stolen good. These rules range from the full protection of the original owner's property right to the full protection of the buyer's reliance on contract. In situations in which only intermediaries can transfer goods by using either theft or markets, society should condone transfers occurred through theft when innocent buyers value the good more than original owners and reverse them otherwise. We show that, in the first case, provided that the difference between the owner's and the buyer's valuation is not too wide, there are separating equilibria in which moral intermediaries --- i.e., those for whom theft entails a sufficiently high moral cost --- signal their proper title by charging higher prices. In the second case, the market shrinks since moral intermediaries refrain from stealing. In the most likely case, in which buyers tend to value the good more than original owners, the extent of protection of the owner increases (decreases) with the share of moral intermediaries (the quality of the legal system) because of the lower probability of theft (lower impact of public enforcement). Instrumental variables estimates based on a cross section of 77 jurisdictions are consistent with this prediction.
Dari-Mattiacci, Giuseppe, Guerriero, Carmine and Huang, Zhenxing, The Good-Faith Purchaser: Markets, Culture, and the Legal System (June 20, 2012). Amsterdam Law School Research Paper No. 2012-70; Amsterdam Center for Law & Economics Working Paper No. 2012-01.
Saturday, June 23, 2012
A Plural Account of the Transnational Law Merchant
Abstract:
The Law Merchant is depicted today as a transnational system based on merchant practice operating outside the fabric of national law. It is conceived as cosmopolitan in nature, universal in application, expertly delivered, and independent of other regulatory systems. This article critiques these qualities attributed to the historical as well as present-day Law Merchant. It disputes that it has evolved ‘spontaneously’ out of merchant practice; that it is uniform in nature; and that it transcends national law. It argues instead that the Law Merchant is often fragmentary in nature and subject to disparate national and transnational influences. It challenges, in particular, unitary conceptions of ‘autonomy’ ascribed to the Law Merchant, presenting a pluralistic conception of Law Merchant ‘autonomy’ instead. It illustrates these arguments in relation to the so-called Cyberspace Law Merchant and to transnational commercial arbitration.
Trakman, Leon, A Plural Account of the Transnational Law Merchant (May 14, 2012). (2011) 2(3) Transnational Legal Theory 309–345; UNSW Law Research Paper No. 2012-19.
The Law Merchant is depicted today as a transnational system based on merchant practice operating outside the fabric of national law. It is conceived as cosmopolitan in nature, universal in application, expertly delivered, and independent of other regulatory systems. This article critiques these qualities attributed to the historical as well as present-day Law Merchant. It disputes that it has evolved ‘spontaneously’ out of merchant practice; that it is uniform in nature; and that it transcends national law. It argues instead that the Law Merchant is often fragmentary in nature and subject to disparate national and transnational influences. It challenges, in particular, unitary conceptions of ‘autonomy’ ascribed to the Law Merchant, presenting a pluralistic conception of Law Merchant ‘autonomy’ instead. It illustrates these arguments in relation to the so-called Cyberspace Law Merchant and to transnational commercial arbitration.
Trakman, Leon, A Plural Account of the Transnational Law Merchant (May 14, 2012). (2011) 2(3) Transnational Legal Theory 309–345; UNSW Law Research Paper No. 2012-19.
Private Legal Transplants: Bright and dark nature of an unnoticed phenomenon
"Only a few months ago, the social image of prominent transnational enterprises such as Apple and HP was threatened by media reporting several violations of labor rights by Foxconn, the main contract manufacturer for electronics companies such as these, and which is located in the People’s Republic of China ..." (more)
[Tomaso Ferando, Critical Legal Thinking, 28 May 2012]
Sunday, June 17, 2012
Code vs. Code: Nationalist and Internationalist Images of the Code Civil in the French Resistance to a European Codification
Abstract:
French academics reacted to announcements about a possible future European civil code ten years ago in the way in which Americans reacted to the Japanese attack on Pearl Harbor 1940: first with shock, then with rearmament, finally with attempted counterattacks. Military metaphors abound. Yet the defense of the French Code Civil against a European civil code is tricky: they must defend one Code against another. The images drawn of codes are therefor of particular interest for our understanding both of civil codes and of legal nationalism. Often, two mutually exclusive images are presented at the same time. In cultural terms, the code civil is both traditional and revolutionary, both linguistically determined and independent of its language, both an expression of values and merely formal and neutral. Politically, the code civil is legitimated both in democracy and technocracy, it expresses both self-determination and imperialism, it is about both pluralism and universalism. Necessarily, in such juxtapositions, the same characteristics must be assigned to a European Code, making the arguments ultimately self-refuting. Nonetheless, the point is not to dismiss these defenses. Rather, they should be understood as expressions of faith — and the discussion over a European Code resembles, in part, a religious war.
Michaels, Ralf, Code vs. Code: Nationalist and Internationalist Images of the Code Civil in the French Resistance to a European Codification (May 22, 2012). European Review of Contract Law, Vol. 8, Forthcoming 2012.
French academics reacted to announcements about a possible future European civil code ten years ago in the way in which Americans reacted to the Japanese attack on Pearl Harbor 1940: first with shock, then with rearmament, finally with attempted counterattacks. Military metaphors abound. Yet the defense of the French Code Civil against a European civil code is tricky: they must defend one Code against another. The images drawn of codes are therefor of particular interest for our understanding both of civil codes and of legal nationalism. Often, two mutually exclusive images are presented at the same time. In cultural terms, the code civil is both traditional and revolutionary, both linguistically determined and independent of its language, both an expression of values and merely formal and neutral. Politically, the code civil is legitimated both in democracy and technocracy, it expresses both self-determination and imperialism, it is about both pluralism and universalism. Necessarily, in such juxtapositions, the same characteristics must be assigned to a European Code, making the arguments ultimately self-refuting. Nonetheless, the point is not to dismiss these defenses. Rather, they should be understood as expressions of faith — and the discussion over a European Code resembles, in part, a religious war.
Michaels, Ralf, Code vs. Code: Nationalist and Internationalist Images of the Code Civil in the French Resistance to a European Codification (May 22, 2012). European Review of Contract Law, Vol. 8, Forthcoming 2012.
Thursday, June 14, 2012
Stare Decisis - A Universally Misunderstood Idea?
Abstract:
In this article, I argue against the overstatement of the binding effects of precedent in common law and against the understatement of the relevance of precedent in civil law. I try to show that judges and courts in both kind of systems have to acknowledge relevant precedents and then provide persuasive reasons for following or not following them. Blindly following precedent, just as blind application of statutes, is acceptable only in the 'empire of mechanical jurisprudence'. Ignoring precedent in the name of judicial independence, on the other hand, is acceptable only in the empire of arbitrary jurisprudence. Legal systems subscribing to the rule of law can neither be mechanical nor arbitrary. They have to care about legitimacy of the judicial process. They have to explain themselves and they have to do so persuasively.
Emmert, Frank, Stare Decisis - A Universally Misunderstood Idea? (May 7, 2012).
In this article, I argue against the overstatement of the binding effects of precedent in common law and against the understatement of the relevance of precedent in civil law. I try to show that judges and courts in both kind of systems have to acknowledge relevant precedents and then provide persuasive reasons for following or not following them. Blindly following precedent, just as blind application of statutes, is acceptable only in the 'empire of mechanical jurisprudence'. Ignoring precedent in the name of judicial independence, on the other hand, is acceptable only in the empire of arbitrary jurisprudence. Legal systems subscribing to the rule of law can neither be mechanical nor arbitrary. They have to care about legitimacy of the judicial process. They have to explain themselves and they have to do so persuasively.
Emmert, Frank, Stare Decisis - A Universally Misunderstood Idea? (May 7, 2012).
Wednesday, June 13, 2012
From Administrative Law to Administrative Legitimation? The Spatiality of Law and Transnational Administrative Law in Comparative Perspective
Abstract:
Globalisation redefines the relationship between law and space, resulting in the emergence of transnational administrative law in a globalising legal space. I aim to shed light on transnational administrative law by examining how administrative law relates to the process of European integration. I argue that the idea of administrative legitimation is at the core of this relationship. In the European Union, transnational administration grounds its legitimacy on the fulfilment of administrative law requirements. However, given that in the European Union, administrative legitimation is rooted in Europe’s constitutional transformation, I caution against the projection of Europe’s experience onto global governance.
Kuo, Ming-Sung, From Administrative Law to Administrative Legitimation? The Spatiality of Law and Transnational Administrative Law in Comparative Perspective (2012). International & Comparative Law Quarterly, Forthcoming ; Warwick School of Law Research Paper No. 2012/12.
Globalisation redefines the relationship between law and space, resulting in the emergence of transnational administrative law in a globalising legal space. I aim to shed light on transnational administrative law by examining how administrative law relates to the process of European integration. I argue that the idea of administrative legitimation is at the core of this relationship. In the European Union, transnational administration grounds its legitimacy on the fulfilment of administrative law requirements. However, given that in the European Union, administrative legitimation is rooted in Europe’s constitutional transformation, I caution against the projection of Europe’s experience onto global governance.
Kuo, Ming-Sung, From Administrative Law to Administrative Legitimation? The Spatiality of Law and Transnational Administrative Law in Comparative Perspective (2012). International & Comparative Law Quarterly, Forthcoming ; Warwick School of Law Research Paper No. 2012/12.
The Use and Influence of Comparative Law in ‘Wrongful Life’ Cases
Abstract:
In analysing 'wrongful life' cases, comparative law is used extensively. This article examines these wrongful life cases, especially in light of the contradicting outcomes in different jurisdictions across the world, with the Dutch Kelly case and the South African decision in Stewart v Botha as its main examples. I will test the hypothesis that it is not so much the outcomes and (more importantly) the arguments found elsewhere through the comparative law method that are decisive in highly debated cases like those concerning wrongful life, but that instead it is something else that decides the issue, something I would define as the cultural background of, or the legal policies within a tort law system.
Giesen, Ivo, The Use and Influence of Comparative Law in ‘Wrongful Life’ Cases (May 10, 2012). Utrecht Law Review, Vol. 8, No. 2, p. 35-54, May 2012.
In analysing 'wrongful life' cases, comparative law is used extensively. This article examines these wrongful life cases, especially in light of the contradicting outcomes in different jurisdictions across the world, with the Dutch Kelly case and the South African decision in Stewart v Botha as its main examples. I will test the hypothesis that it is not so much the outcomes and (more importantly) the arguments found elsewhere through the comparative law method that are decisive in highly debated cases like those concerning wrongful life, but that instead it is something else that decides the issue, something I would define as the cultural background of, or the legal policies within a tort law system.
Giesen, Ivo, The Use and Influence of Comparative Law in ‘Wrongful Life’ Cases (May 10, 2012). Utrecht Law Review, Vol. 8, No. 2, p. 35-54, May 2012.
Saturday, June 9, 2012
Quantitative Methods in Comparative Law
Abstract:
In the field of comparative law, the use of economic analysis has been at the same time fashionable and controversial. Notwithstanding its controversial acceptance in the discipline, the so-called comparative law and economics method is an important example of the application of economics to areas that were once considered beyond the realm of economic analysis. This article discusses the multiple roles that quantitative economic methods (both theoretical and empirical) can play for comparative legal analysis.
Parisi, Francesco and Luppi, Barbara, Quantitative Methods in Comparative Law (May 2, 2012). Minnesota Legal Studies Research Paper No. 12-20.
In the field of comparative law, the use of economic analysis has been at the same time fashionable and controversial. Notwithstanding its controversial acceptance in the discipline, the so-called comparative law and economics method is an important example of the application of economics to areas that were once considered beyond the realm of economic analysis. This article discusses the multiple roles that quantitative economic methods (both theoretical and empirical) can play for comparative legal analysis.
Parisi, Francesco and Luppi, Barbara, Quantitative Methods in Comparative Law (May 2, 2012). Minnesota Legal Studies Research Paper No. 12-20.
The Unification of Private Law in Europe from the Perspective of Polish Legal Culture
Abstract:
The paper analyses the relationship between the possible future unification of private law in the European Union and Polish culture of private law understood as the ability of Polish legal culture to adapt to a new unified European private law in the future. Based on the assumption that Polish culture of private law does not have a ‘unique’ or ‘original’ character making it qualitatively distinct from e.g. German or French legal culture, the paper argues that Polish legal culture as such does not pose any obstacles to the unification of private law. The paper also analyses the possible impact of the unification of Polish private law on the practices of Polish legal culture, i.e. legislation, adjudication, legal counselling, scholarship and education. It argues that the unification would be the most beneficial for Polish practitioners and scholars, making their professions much more internationalised than at present and enhancing the possibility of their effective free movement across the Union. The same applies to legal education: the new unified European private law introduced into curricula of law schools, law faculties and legal professional training would mean that Polish students and apprentices would study subjects of a pan-European, and not only national relevance. A benefit common to judges, practitioners and scholars would be the possibility of resorting to a much wider scope of case-law and scholarly writings in pleadings, court decisions and academic discussions de lege lata. However, it would also be important to ensure that an input from Polish scholars is made into the new European doctrine of private law, so that the movement of legal ideas is not only one-sided.
Mańko, Rafał, The Unification of Private Law in Europe from the Perspective of Polish Legal Culture (2008). (2007-2008) 11 Yearbook of Polish Legal Studies 109.
The paper analyses the relationship between the possible future unification of private law in the European Union and Polish culture of private law understood as the ability of Polish legal culture to adapt to a new unified European private law in the future. Based on the assumption that Polish culture of private law does not have a ‘unique’ or ‘original’ character making it qualitatively distinct from e.g. German or French legal culture, the paper argues that Polish legal culture as such does not pose any obstacles to the unification of private law. The paper also analyses the possible impact of the unification of Polish private law on the practices of Polish legal culture, i.e. legislation, adjudication, legal counselling, scholarship and education. It argues that the unification would be the most beneficial for Polish practitioners and scholars, making their professions much more internationalised than at present and enhancing the possibility of their effective free movement across the Union. The same applies to legal education: the new unified European private law introduced into curricula of law schools, law faculties and legal professional training would mean that Polish students and apprentices would study subjects of a pan-European, and not only national relevance. A benefit common to judges, practitioners and scholars would be the possibility of resorting to a much wider scope of case-law and scholarly writings in pleadings, court decisions and academic discussions de lege lata. However, it would also be important to ensure that an input from Polish scholars is made into the new European doctrine of private law, so that the movement of legal ideas is not only one-sided.
Mańko, Rafał, The Unification of Private Law in Europe from the Perspective of Polish Legal Culture (2008). (2007-2008) 11 Yearbook of Polish Legal Studies 109.
Sunday, June 3, 2012
Legal Cultures and Legal Transplants in Germany
Abstract:
At first glance, many jurists often perceive their own (Private) law to be somewhat hermetic in nature. Their law exists in its own self-contained cosmos, independent from others in the legal universe, yet its atmosphere is sometimes breached by the ‘meteorites’ of international and European law. The reasons for this perception are clear: it is often difficult to ascertain in ones own legal system the influences from foreign (or supranational) law and from foreign legal cultures. This is impeded further by most universities failing to approach this topic, except briefly in the context of international and European law. The following therefore shall attempt to at least attenuate this deficit by providing a ‘birds-eye view’ of German law. In doing so, not only shall the clear marks left in each legal area by foreign and supranational law be shown, but also how they continue to considerably impact upon the German legal landscape and legal culture.
Janssen, Andre and Schulze, Reiner, Legal Cultures and Legal Transplants in Germany (2011). European Review of Private Law, Vol. 2, pp. 225-256, 2011.
At first glance, many jurists often perceive their own (Private) law to be somewhat hermetic in nature. Their law exists in its own self-contained cosmos, independent from others in the legal universe, yet its atmosphere is sometimes breached by the ‘meteorites’ of international and European law. The reasons for this perception are clear: it is often difficult to ascertain in ones own legal system the influences from foreign (or supranational) law and from foreign legal cultures. This is impeded further by most universities failing to approach this topic, except briefly in the context of international and European law. The following therefore shall attempt to at least attenuate this deficit by providing a ‘birds-eye view’ of German law. In doing so, not only shall the clear marks left in each legal area by foreign and supranational law be shown, but also how they continue to considerably impact upon the German legal landscape and legal culture.
Janssen, Andre and Schulze, Reiner, Legal Cultures and Legal Transplants in Germany (2011). European Review of Private Law, Vol. 2, pp. 225-256, 2011.
Saturday, June 2, 2012
Quantitative Methods in Comparative Law
Abstract:
In the field of comparative law, the use of economic analysis has been at the same time fashionable and controversial. Notwithstanding its controversial acceptance in the discipline, the so-called comparative law and economics method is an important example of the application of economics to areas that were once considered beyond the realm of economic analysis. This article discusses the multiple roles that quantitative economic methods (both theoretical and empirical) can play for comparative legal analysis.
Parisi, Francesco and Luppi, Barbara, Quantitative Methods in Comparative Law (May 2, 2012). Minnesota Legal Studies Research Paper No. 12-20.
In the field of comparative law, the use of economic analysis has been at the same time fashionable and controversial. Notwithstanding its controversial acceptance in the discipline, the so-called comparative law and economics method is an important example of the application of economics to areas that were once considered beyond the realm of economic analysis. This article discusses the multiple roles that quantitative economic methods (both theoretical and empirical) can play for comparative legal analysis.
Parisi, Francesco and Luppi, Barbara, Quantitative Methods in Comparative Law (May 2, 2012). Minnesota Legal Studies Research Paper No. 12-20.
Brown Abroad: An Empirical Analysis of Foreign Judicial Citation and the Metaphor of Cosmopolitan Conversation
Abstract:
This Article generates a data set (twelve courts and thirty-two decisions) of foreign judicial citations to the landmark U.S. Supreme Court decision in Brown v. Board of Education. The purpose of this Article is to learn what happens when a case is deterritorialized and reconstituted in a different national scenario, and to conceptualize how courts around the world use foreign authority. Analysis reveals that few foreign courts used Brown in decisions involving education or race and ethnicity. Foreign courts used the case as a form of factual evidence, as a guide in understanding the proper role of a court with respect to decision making, and as a source of substantive law in discussions on equal protection. Specifically, the article illustrates the ways in which justices on both the New Zealand Court of Appeal and the Constitutional Court of South Africa used Brown in discussions of same-sex marriage. Although central to comparative law, the legal transplant metaphor does not adequately explain the transnational use of Brown. By incorporating sociological theories of diffusion and innovation, the article attempts to reconcile some of the flaws of the transplant metaphor and argue that conceptualizing judiciaries’ use of foreign law as a cosmopolitan conversation is more appropriate. Cosmopolitan conversation has led to forms of legal learning and innovation when courts have cited, interpreted, and infused their own meaning into the Brown decision.
Lyke, Sheldon Bernard, Brown Abroad: An Empirical Analysis of Foreign Judicial Citation and the Metaphor of Cosmopolitan Conversation (March 2, 2012). Vanderbilt Journal of Transnational Law, Vol. 45, p. 83, 2012.
This Article generates a data set (twelve courts and thirty-two decisions) of foreign judicial citations to the landmark U.S. Supreme Court decision in Brown v. Board of Education. The purpose of this Article is to learn what happens when a case is deterritorialized and reconstituted in a different national scenario, and to conceptualize how courts around the world use foreign authority. Analysis reveals that few foreign courts used Brown in decisions involving education or race and ethnicity. Foreign courts used the case as a form of factual evidence, as a guide in understanding the proper role of a court with respect to decision making, and as a source of substantive law in discussions on equal protection. Specifically, the article illustrates the ways in which justices on both the New Zealand Court of Appeal and the Constitutional Court of South Africa used Brown in discussions of same-sex marriage. Although central to comparative law, the legal transplant metaphor does not adequately explain the transnational use of Brown. By incorporating sociological theories of diffusion and innovation, the article attempts to reconcile some of the flaws of the transplant metaphor and argue that conceptualizing judiciaries’ use of foreign law as a cosmopolitan conversation is more appropriate. Cosmopolitan conversation has led to forms of legal learning and innovation when courts have cited, interpreted, and infused their own meaning into the Brown decision.
Lyke, Sheldon Bernard, Brown Abroad: An Empirical Analysis of Foreign Judicial Citation and the Metaphor of Cosmopolitan Conversation (March 2, 2012). Vanderbilt Journal of Transnational Law, Vol. 45, p. 83, 2012.
Thursday, May 31, 2012
General Principles and Comparative Law
"My article explores the source ‘general principles of international law’ from the point of view of comparative law scholarship. As international law’s agenda becomes wider and more ambitious, areas of overlap between international and municipal law become ever larger, and interactions between the two levels more numerous. It might seem reasonable to assume that general principles of law, a source which establishes an important point of contact between international and municipal law, would come into its own in such an environment. This has not been the case, however. One possible explanation is hesitation on the part of international judges to identify rules whose formal validity as rules of international law is rather tenuous ..." (more)
EJIL: Talk!, 31 May. Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971.
EJIL: Talk!, 31 May. Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971.
Monday, May 28, 2012
Explanatory Synthesis and Rule Synthesis: A Comparative Civil Law and Common Law Analysis
Abstract:
In comparative study of common law and civilian legal analysis, many scholars have noted a convergence in the two systems' use of precedent cases. Although common law legal theory historically has started from a position that judges are fully competent to create law and change the law through their adjudication of cases and the judicial opinions they write, and civilian theory historically has started from a position that judges are not empowered to create and change the law enacted by the legislature but rather are to read and apply the existing law to new cases, the practice of tribunals within the two families of legal analysis has not reflected clear distinctions in the approach to and use of precedent. Civilian judges refer to case law and acknowledge the persuasive effect of precedent on their determinations, and common law judges have become more civilian in their respect for legislative authority to enact laws that determine cases. A common law approach to precedent includes the theory of stare decisis, that decisions of courts in a proper position in the hierarchy of judicial authority of the appropriate jurisdiction shall issue opinions that are binding on lower courts within the same hierarchy, but it is no longer a safe proposition to suggest that a civilian judge will not find precedent to be binding and will not follow the guidance of prior judicial determinations in the adjudication of a new dispute. Similarly, a common law judge may go to extreme lengths to distinguish precedents, and precedents of the same court or same level of court will be rejected from time to time - reversed, abrogated, modified, or replaced - in the name of progress and justice.
The purpose of this article is not to trace the exact points of convergence and comparative divergence in the use of and reliance on precedent. Rather, I use this convergence as a platform for the discussion of explanatory synthesis and rule synthesis. Explanatory synthesis, the inductive use of precedent in a demonstrative and persuasive presentation of how the law should be interpreted and applied, may be distinguished from rule synthesis because it does not depend on the precedent being binding or on the application of any form of the doctrine of stare decisis. Explanatory synthesis as a form of legal analysis relies on the open, scientific, inductive structure of the analysis and the use of multiple precedents for the accuracy and reliability of its predictions and conclusions. Rhetorically, explanatory synthesis relies on the structure of mathematical-scientific induction within a familiar deductive syllogistic structure, and on the open, demonstrative, and falsifiable analysis of multiple authorities both to create knowledge and understanding and for persuasive advocacy.
Murray, Michael D., Explanatory Synthesis and Rule Synthesis: A Comparative Civil Law and Common Law Analysis (September 26, 2011). Bahçeşehir Üniversitesi Hukuk Fakültesi-Kazancı Hukuk Dergisi, Vol. 139, pp. 83-84, 2011.
In comparative study of common law and civilian legal analysis, many scholars have noted a convergence in the two systems' use of precedent cases. Although common law legal theory historically has started from a position that judges are fully competent to create law and change the law through their adjudication of cases and the judicial opinions they write, and civilian theory historically has started from a position that judges are not empowered to create and change the law enacted by the legislature but rather are to read and apply the existing law to new cases, the practice of tribunals within the two families of legal analysis has not reflected clear distinctions in the approach to and use of precedent. Civilian judges refer to case law and acknowledge the persuasive effect of precedent on their determinations, and common law judges have become more civilian in their respect for legislative authority to enact laws that determine cases. A common law approach to precedent includes the theory of stare decisis, that decisions of courts in a proper position in the hierarchy of judicial authority of the appropriate jurisdiction shall issue opinions that are binding on lower courts within the same hierarchy, but it is no longer a safe proposition to suggest that a civilian judge will not find precedent to be binding and will not follow the guidance of prior judicial determinations in the adjudication of a new dispute. Similarly, a common law judge may go to extreme lengths to distinguish precedents, and precedents of the same court or same level of court will be rejected from time to time - reversed, abrogated, modified, or replaced - in the name of progress and justice.
The purpose of this article is not to trace the exact points of convergence and comparative divergence in the use of and reliance on precedent. Rather, I use this convergence as a platform for the discussion of explanatory synthesis and rule synthesis. Explanatory synthesis, the inductive use of precedent in a demonstrative and persuasive presentation of how the law should be interpreted and applied, may be distinguished from rule synthesis because it does not depend on the precedent being binding or on the application of any form of the doctrine of stare decisis. Explanatory synthesis as a form of legal analysis relies on the open, scientific, inductive structure of the analysis and the use of multiple precedents for the accuracy and reliability of its predictions and conclusions. Rhetorically, explanatory synthesis relies on the structure of mathematical-scientific induction within a familiar deductive syllogistic structure, and on the open, demonstrative, and falsifiable analysis of multiple authorities both to create knowledge and understanding and for persuasive advocacy.
Murray, Michael D., Explanatory Synthesis and Rule Synthesis: A Comparative Civil Law and Common Law Analysis (September 26, 2011). Bahçeşehir Üniversitesi Hukuk Fakültesi-Kazancı Hukuk Dergisi, Vol. 139, pp. 83-84, 2011.
New Study Group on European Cooperative Law: 'Principles' Project
Abstract:
This paper presents both a new scientific network named “Study Group on European Cooperative Law” (SGECOL), and the “Principles of European Cooperative Law” (PECOL) project, which SGECOL has identified as its first research activity.
SGECOL is a European group of cooperative law scholars, established in Trento (Italy), at the European Research Institute on Cooperative and Social Enterprises (Euricse), in November 2011. SGECOL’s general objective is to conduct comparative research on cooperative law in Europe, thus promoting increased awareness and understanding of cooperative law within the legal, academic and governmental communities at national, European and international level. SGECOL intends to achieve this objective through various research initiatives on cooperative law, beginning with the drafting of PECOL.
PECOL will take the form of legal provisions accompanied by explanatory comments. They will be developed on the basis of the existing cooperative law in Europe, focusing in particular on six European jurisdictions (Finland, France, Germany, Italy, Spain, UK). PECOL, however, will not simply summarize and describe the common core of European national cooperative laws. Going beyond that, the project aims to present the main general provisions through which – in the authors’ view – cooperative law should be formulated to provide cooperatives with a definite and distinct legal identity vis-a-vis other business organizations.
The PECOL project does not serve a single specific purpose, still less is its goal to impose harmonization on national cooperative laws. PECOL will be a scientific and scholarly work, capable of serving many potential functions, depending on the users’ particular needs.
Fajardo, Gemma, Fici, Antonio, Henrÿ, Hagen, Hiez, David, Münkner, Hans-Hermann and Snaith, Ian, New Study Group on European Cooperative Law: 'Principles' Project (February 14, 2012). Euricse Working Paper No. 24/12.
This paper presents both a new scientific network named “Study Group on European Cooperative Law” (SGECOL), and the “Principles of European Cooperative Law” (PECOL) project, which SGECOL has identified as its first research activity.
SGECOL is a European group of cooperative law scholars, established in Trento (Italy), at the European Research Institute on Cooperative and Social Enterprises (Euricse), in November 2011. SGECOL’s general objective is to conduct comparative research on cooperative law in Europe, thus promoting increased awareness and understanding of cooperative law within the legal, academic and governmental communities at national, European and international level. SGECOL intends to achieve this objective through various research initiatives on cooperative law, beginning with the drafting of PECOL.
PECOL will take the form of legal provisions accompanied by explanatory comments. They will be developed on the basis of the existing cooperative law in Europe, focusing in particular on six European jurisdictions (Finland, France, Germany, Italy, Spain, UK). PECOL, however, will not simply summarize and describe the common core of European national cooperative laws. Going beyond that, the project aims to present the main general provisions through which – in the authors’ view – cooperative law should be formulated to provide cooperatives with a definite and distinct legal identity vis-a-vis other business organizations.
The PECOL project does not serve a single specific purpose, still less is its goal to impose harmonization on national cooperative laws. PECOL will be a scientific and scholarly work, capable of serving many potential functions, depending on the users’ particular needs.
Fajardo, Gemma, Fici, Antonio, Henrÿ, Hagen, Hiez, David, Münkner, Hans-Hermann and Snaith, Ian, New Study Group on European Cooperative Law: 'Principles' Project (February 14, 2012). Euricse Working Paper No. 24/12.
Thursday, May 24, 2012
Incorporating a Comparative Perspective into Undergraduate American Constitutional Law Courses
Abstract:
This paper notes a rise in the inclusion of comparative law in American law school curricula and suggests that political science instructors can benefit from incorporating a comparative perspective into the constitutional law courses that are offered to undergraduates. Based on the author’s recent experience teaching undergraduate constitutional law, an approach for doing so is outlined along with its objectives and potential benefits. The paper hopes to add to work by previous APSA Teaching and Learning Conference participants who have identified effective and engaging methods for teaching constitutional law.
Narasimhan, Angela G., Incorporating a Comparative Perspective into Undergraduate American Constitutional Law Courses (2012). APSA 2012 Teaching & Learning Conference Paper.
This paper notes a rise in the inclusion of comparative law in American law school curricula and suggests that political science instructors can benefit from incorporating a comparative perspective into the constitutional law courses that are offered to undergraduates. Based on the author’s recent experience teaching undergraduate constitutional law, an approach for doing so is outlined along with its objectives and potential benefits. The paper hopes to add to work by previous APSA Teaching and Learning Conference participants who have identified effective and engaging methods for teaching constitutional law.
Narasimhan, Angela G., Incorporating a Comparative Perspective into Undergraduate American Constitutional Law Courses (2012). APSA 2012 Teaching & Learning Conference Paper.
Law & Development as Anti-Comparative Law
Abstract:
This article asserts that during the twentieth century, American law has predominately structured its relationship to foreign legal experience through a set of ideas and practices known as “law and development,” which is irredeemably antithetical to the practice of comparative law. Centrally, law and development is built on the assumption that American law can be exported abroad to catalyze foreign legal development. The dismal record of such efforts has remained paradoxically popular while the field remains locked in repeating cycles of failure and optimism.
This article demonstrates that the history of law and development’s failures is far older than has been traditionally recognized, and dates back to the turn of the twentieth century. In this era, foreign reform became a key part of the professional image of the modern American lawyer. At the same time, the origins of law and development were intimately tied to the decline of comparative law in American legal culture. This history reveals that the paradox of law and development’s contemporary popularity can only be understood by recognizing the cultural politics that these developments embedded in the American legal community. The troubling legacy of this widely entrenched view of America as solely an exporter of legal knowledge presents pressing liabilities for American law, both internationally and domestically, on the competitive terrain of the twenty-first century.
This article concludes that in order to address these liabilities, America should categorically abandon law and development and should fundamentally reorient its relationship to foreign legal experience through a self-interested practice of comparative law. As exemplified in the debate over judicial citation of foreign precedents, this shift will require basic changes in how American legislative and administrative bodies relate to foreign law, as well as the place of comparative law in American law schools. Such a reorientation will enable America to strategically perceive foreign legal developments and, most critically, productively adapt foreign legal experience as an energizing stimulant to our own legal innovation.
Kroncke, Jedidiah, Law & Development as Anti-Comparative Law (September 23, 2011). Vanderbilt Journal of Transnational Law, Vol. 45, 2012.
This article asserts that during the twentieth century, American law has predominately structured its relationship to foreign legal experience through a set of ideas and practices known as “law and development,” which is irredeemably antithetical to the practice of comparative law. Centrally, law and development is built on the assumption that American law can be exported abroad to catalyze foreign legal development. The dismal record of such efforts has remained paradoxically popular while the field remains locked in repeating cycles of failure and optimism.
This article demonstrates that the history of law and development’s failures is far older than has been traditionally recognized, and dates back to the turn of the twentieth century. In this era, foreign reform became a key part of the professional image of the modern American lawyer. At the same time, the origins of law and development were intimately tied to the decline of comparative law in American legal culture. This history reveals that the paradox of law and development’s contemporary popularity can only be understood by recognizing the cultural politics that these developments embedded in the American legal community. The troubling legacy of this widely entrenched view of America as solely an exporter of legal knowledge presents pressing liabilities for American law, both internationally and domestically, on the competitive terrain of the twenty-first century.
This article concludes that in order to address these liabilities, America should categorically abandon law and development and should fundamentally reorient its relationship to foreign legal experience through a self-interested practice of comparative law. As exemplified in the debate over judicial citation of foreign precedents, this shift will require basic changes in how American legislative and administrative bodies relate to foreign law, as well as the place of comparative law in American law schools. Such a reorientation will enable America to strategically perceive foreign legal developments and, most critically, productively adapt foreign legal experience as an energizing stimulant to our own legal innovation.
Kroncke, Jedidiah, Law & Development as Anti-Comparative Law (September 23, 2011). Vanderbilt Journal of Transnational Law, Vol. 45, 2012.
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