Toward a Methodology for Successful Legal Transplants

Abstract:
Global efforts to promote rule of law and good governance have led to renewed interest in legal transplants. Many reforms projects have focused on the substance of legal transplants, prescribing particular laws, practices or institutions, concepts, norms and attitudes – usually those found in the advanced economies of Euro-America – for developing countries. The results of such projects have been disappointing. The lackluster results have called attention to the need to develop a workable methodology for legal reforms, focusing on the processes of reform. Such a methodology must be based on a better theoretical and empirical understanding of the conditions that determine the success or failure of legal transplants. Part I provides a general overview of the legal transplant literature, focusing on descriptions, prediction and evaluation. One of the shortcomings of current rule of law promotion programs is that they tend to prescribe a common set of 'best practices' for all countries. Relatively little work has been done on differentiating developing countries and developing categories or ideal types based on the types of challenges they face. Accordingly, Part I lays the groundwork for a methodology of legal reforms based on differential analysis by first distinguishing between three 'exceptional cases': failed states, post-conflict states, and transitional states. In particular, Part I contrasts the particular problems facing low-income countries (LICs) with those facing middle-income countries (MICs). Part II then develops a preliminary methodological framework for assessing legal reforms and legal transplants. Part III concludes.

Peerenboom, Randall, Toward a Methodology for Successful Legal Transplants (January 9, 2012).

Constitutional Transplants, Borrowing, and Migrations

Abstract:
This paper, which will be published in the Oxford Handbook on Comparative Constitutional Law (M. Rosenfeld & A. Sajo, eds., forthcoming 2012), explores the borrowing and migration of constitutional ideas and institutions across jurisdictions. Despite the fact that comparative constitutional law is a form of comparative law, comparative constitutionalism has thus far largely ignored the rich debates in comparative law on the topic of legal transplants. I argue that those debates can illuminate our understanding of how constitutional doctrines and ideas travel. After noting the missing legacy of comparative legal thought in the constitutional realm, the paper studies the anatomy of constitutional transplants (object, timing, motivations and patterns) and provides a framework for their normative justifications. The paper concludes with remarks on constitutional convergence.

Perju, Vlad, Constitutional Transplants, Borrowing, and Migrations (January 9, 2012). OXFORD HANDBOOK ON COMPARATIVE CONSTITUTIONAL LAW, M. Rosenfeld , A. Sajo, eds., Oxford University Press, 2012; Boston College Law School Legal Studies Research Paper No. 254.

Comparing Remedies for Breach of Contract in Italian and English Law

Abstract:
This detailed comparative research seeks to clarify three particular remedies available in English and Italian Law from a breach of contract. These are termination of contract, performance and monetary relief. This research has followed a systematic comparative methodology and by doing so a comprehensive conclusion on remedies in Italian and English Law has been reached. This research has ensured a full analysis of these remedies by looking beyond English and Italian Law by comparing legal history, legal systems, legal culture, legal tradition and legal jurisprudence. This research concludes by showing the importance of remedies beyond contract law. Furthermore, it will also show why it is important to carry out comparative research with a clear methodology because as harmonisation of Laws intensifies it is important that the true function of a countries Law is not overlooked and lost within the legal terminology of another legal system.

Ficetola, Luca, Comparing Remedies for Breach of Contract in Italian and English Law (May 3, 2011).