Additional articles from SSRN and beyond have been noted by our friend in the Irish Society of Comparative Law.
They include:
- · Kroncke, Jedidiah, Law & Development as Anti-Comparative Law (September 23, 2011). Vanderbilt Journal of Transnational Law, Vol. 45, 2012.
- · Narasimhan, Angela G., Incorporating a Comparative Perspective into Undergraduate American Constitutional Law Courses (2012). APSA 2012 Teaching & Learning Conference Paper.
- · 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.
- · 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.
- · 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.
The
abstracts are below:
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.
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.
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.
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.
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.
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. Another
possible explanation is the highly unsatisfactory nature, both in theory and in
practice, of the methodology currently applied to identify general principles
of law. The debates at the international level regarding general principles map
onto those at the municipal level concerning the ‘borrowing’ of rules from one
legal system by another. It makes sense, therefore, to look into the
controversies over ‘borrowing’ that play out in scholarship on comparative law,
in order to gain some insights into the difficulties generated by the source
general principles of law, as well as ways of alleviating these difficulties. I
argue that particular attention ought to be paid to strands of comparative law
scholarship which take issue with a functional approach – to put it starkly, an
approach that treats legal rules as pieces that can be extracted from one
machine and inserted into another – and which place emphasis on the processes
through which legal systems can learn from one another.
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