23 May 2012

NOTICE: SSRN Articles


Additional SSRN articles have recently been noted by a friend in the Irish Society of Comparative Law:
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. 
Common law and civil law property appear to be quite different, with the former emphasizing pieces of ownership called estates and the latter focusing on holistic ownership. And yet the two systems are remarkably similar in their broad outlines, for functional reasons. This paper offers a transaction cost explanation for the practical similarity and the differing styles of delineating property and ownership in the two systems. As opposed to the “complete” property system that could obtain in the world of zero transaction costs, actual property systems employ structures characterized by shortcuts in order to achieve property’s substantive goals of protecting interests in use. Overlooking this structure leads to the bundle of rights picture of property, even though property is a structured bundle of relationships. The architecture of property consists in part of four basic relationships, and a number of characteristic features of property automatically arise out this architecture, including exclusion rights, in rem status, and running to successors. Where civil law and common law differ is in their style of delineation, which reflects the path dependence of initial investment in feudal fragmentation in the common law and Roman-inspired holistic dominion in civil law. This transaction cost explanation for the functional similarities but different delineation process in the two systems promises to put the comparative law of property on a sounder descriptive footing.
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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