The Legal Origins Theory in Crisis

Abstract:
The Legal Origins Theory purports to predict how countries respond to economic and social problems. Specifically, the legal origins of the United States should strongly influence the manner it approaches economic problems and its approach should be distinct from the response of civil law countries. If the theory is accurate, America's legal tradition should have a profound impact on its response to the crisis. This Article seeks to test the boundaries of the theory by assessing whether it could have predicted the manner the U.S. responded to the current economic crisis. After analyzing the U.S. response to the crisis, this article reveals that such response runs fundamentally counter to its legal origins. This inconsistency suggests that political, social, and economic forces do more to explain the U.S. response to significant turmoil than its legal origins. It also suggests that the current crisis may have been so severe that it overwhelmed any explanatory or predictive value potentially derived from the legal origins theory.

Fairfax, Lisa M., The Legal Origins Theory in Crisis (2009). 2009 Brigham Young University Law Review, 1571-1617 (2009); GWU Legal Studies Research Paper No. 2012-94; GWU Law School Public Law Research Paper No. 2012-94.

Presuit Discovery in a Comparative Context

Abstract:
In civil litigation around the globe, the usual process is that investigative discovery is allowed (if at all) only after the plaintiff files an initial pleading. Recently, however, a growing number of jurisdictions have adopted general mechanisms for presuit investigative discovery. This paper explores these mechanisms and probes their nature and importance. It first finds that presuit investigative discovery is surprisingly prevalent among common-law systems, despite the usual order of pleading and discovery. The paper then argues that presuit investigative discovery can provide a useful tool for enabling plaintiffs to file a sufficient complaint in fact-pleading jurisdictions. Finally, the paper suggests that the US federal system, as its pleading system moves closer to the fact-pleading regime typical of the rest of the world, ought to look to foreign mechanisms of presuit investigative discovery as a model for its own reform.

Dodson, Scott, Presuit Discovery in a Comparative Context (2012). Journal of Comparative Law, Vol. 6, 2012.

Comparative Legal Scholarship as Ordinary Legal Scholarship

Abstract:
This essay argues that comparative law is not and never will be a distinctive academic discipline. Various counter-arguments based on the alleged distinctiveness of comparative law’s (1) subject-matter, (2) methodology, (3) challenges, and (4) aims are identified and rejected. The essay concludes by arguing that comparative scholars should embrace the ordinariness of their scholarship. To the extent that comparative law is associated with a particular subject-matter, method, challenge, or aim its value will always be a matter for debate. By contrast, if comparative scholarship is just ordinary scholarship with more data (as I argue), its value is undeniable.

Smith, Stephen A., Comparative Legal Scholarship as Ordinary Legal Scholarship (October 10, 2012).