Additional SSRN articles have recently been noted by a friend in the Irish Society of Comparative Law:
- Van Boom, Willem H., Torts, Courts, and Legislatures Comparative Remarks on Civil Law Codifications of Tort Law (February 6, 2012
This contribution reflects on the relationship between
courts and the legislature in tort law from a comparative European perspective.
Though there is a substantial body of comparative literature on tort law as
such, the relationship between the judiciary and the legislature in comparative
tort law has received significantly attention. Here, the approach under civil
law systems to tort law is and the interaction between the judiciary and the
legislature under those systems is explored. If we look beyond the misconception
among common lawyers that civil law courts act merely as ‘porte-parole de la
loi’ there is much flexibility to be found. In tort cases, civil law courts may
assume a role that complements the role assumed by the legislature. Where codes
give leeway for case law to create, develop, and innovate in tort law, courts
will fill the space. Where the legislature is active, courts may assume a more
subservient role. Yet, there is no single concept of power balance in civil law
tort systems. In some countries, courts may be more willing than in others to
show policy initiative where the legislature fails to act. The overall
conclusion must be that although there is a fundamental difference in the
starting point between the common law and those legal systems that have a
codified tort law system, the balance between the legislature and the courts may
be similar in many respects.
- Chang, Yun-chien and Smith, Henry E., An Economic Analysis of Civil versus Common Law Property (February 17, 2012). Notre Dame Law Review, Forthcoming.
- Sandberg, Haim, Legal Colonialism – Americanization of Legal Education in Israel (June 8, 2010). Global Jurist 10.2 (2012).
The American influence on the legal education in Israel has
been significantly increased during the last three decades. Many faculty members
gained their post-graduate education in American law schools. This phenomenon
emerged out of both economic and cultural considerations. The result is an
importation of research and teaching practices as well as the importation of
theories and values. This process has significant influence on the Israeli legal
system. The legal scholarship turns to be more universal and less local. English
turns to be the main language of the legal academic discourse. The focus of the
academic legal research is gradually concentrating on American contents and
American materials. These phenomena have negative influences on the interaction
of academy and legal practitioners in Israel. Moreover, theories that emerged in
an American environment are percolated from the academic world to policy makers
and judges. These policies have been applied as a solution for local and unique
Israeli problems. The unique characteristics of the Israeli situation are
neglected. Three examples to the latter are brought from the field of judicial
cases concerning land policy. The first is the influence of the Brown v. Board
of Education precedent on Israel policy with regard to allocation of land
resources to minorities in a Jewish state. The second is the influence of
American theories concerning indigenous people and distributive justice on the
privatization of agricultural land in Israel. The third is the influence of
American theories of distributive justice and social responsibility on the
attitude of the Israeli legal world to land expropriations. These three examples
show that the influence of the American education may go beyond the legal sphere
and have a significant influence on basic political interior problems of foreign
nations. Thus, the Israeli case may be a prism of a modern way of colonialism –
a legal colonialism. This kind of superpower influence on small friendly nations
is not exercised by military or economic pressure, but by an export of academic
education. It may be noticed in Obama's insight that "American values are
America's great export to the world.
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