26 March 2012

NOTICE: Recent SSRN Articles

A number of interesting articles have recently appeared on SSRN

In France the intervention of public power in economic relations has varied considerably at different times: there is little relationship between the mercantilism practiced by Colbert during the reign of Louis XIV and the state capitalism of the Fifth Republic, which itself has changed significantly since 1958. The French economy has never been fully nationalized and since the Revolution French law has protected private property rights and the quasi-constitutional freedom of commerce and industry. Thus, the courts (including administrative tribunals) were able to establish limitations on public intervention deemed excessive. In the nineteenth century, compensation was paid to property owners who suffered damage caused by industries authorized by the government. Under the Third Republic, the Council of State recognized cases of state responsibility for its industrial activities and was very restrictive with regard to municipal socialism by defending private interests in the name of free trade. After the First World War, the courts had to accept the startling increase of state intervention in the economy. It was not until the acceptance of constitutional and treaty-based checks in the 1970s and 1980s that the Constitutional Council and all French courts have found ways to reduce, without eliminating, public intervention in the economic sector.  
Is it important to conceptualize transnational law and ‘map’ it as a new legal field? This essay suggests that to do so might help both juristic practice and socio-legal scholarship by making it possible to organize, link and compare what often appear as very disparate and problematic, but increasingly significant, types of regulation. The attempt to clarify the nature of transnational law in general terms raises basic questions about the nature of ‘law’, on the one hand, and of ‘society’ (the realm law regulates), on the other. It forces a fundamental reconsideration of relationships between the public and the private, between law and state, and between different sources of law and legal authority. Taking as its focus two books that explore, in contrasting ways, the nature of law in transnational contexts, the essay considers what approaches may currently be most productive, and what key issues need to be addressed, to make sense of some broad trends in law’s extension beyond the boundaries of nation states.
This paper considers how far a legal-cultural perspective may help to explain contrasts in approaches, in different jurisdictions, to a particular legal issue addressed by five national reports on which the paper comments. The issue is: how should law respond to employees' objections, on grounds of conscience, to being required to perform particular work tasks assigned by their employers, or to being required to perform them in particular ways? The national reports discussed relate to Japan, the United States, Germany, Israel and Spain. The paper argues that cultural factors can influence not only law’s response but also the ways in which the issue of conscience is understood, contextualised and legally presented.

Members might look into the wide variety of SSRN 'e-journals'.

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