05 June 2012

NOTICE: Comparative Law Articles

Additional articles from SSRN have been noted by our friend in the Irish Society of Comparative Law:
This Article generates a data set (twelve courts and thirty-two decisions) of foreign judicial citations to the landmark U.S. Supreme Court decision in Brown v. Board of Education. The purpose of this Article is to learn what happens when a case is deterritorialized and reconstituted in a different national scenario, and to conceptualize how courts around the world use foreign authority. Analysis reveals that few foreign courts used Brown in decisions involving education or race and ethnicity. Foreign courts used the case as a form of factual evidence, as a guide in understanding the proper role of a court with respect to decision making, and as a source of substantive law in discussions on equal protection. Specifically, the article illustrates the ways in which justices on both the New Zealand Court of Appeal and the Constitutional Court of South Africa used Brown in discussions of same-sex marriage. Although central to comparative law, the legal transplant metaphor does not adequately explain the transnational use of Brown. By incorporating sociological theories of diffusion and innovation, the article attempts to reconcile some of the flaws of the transplant metaphor and argue that conceptualizing judiciaries’ use of foreign law as a cosmopolitan conversation is more appropriate. Cosmopolitan conversation has led to forms of legal learning and innovation when courts have cited, interpreted, and infused their own meaning into the Brown decision.

In the field of comparative law, the use of economic analysis has been at the same time fashionable and controversial. Notwithstanding its controversial acceptance in the discipline, the so-called comparative law and economics method is an important example of the application of economics to areas that were once considered beyond the realm of economic analysis. This article discusses the multiple roles that quantitative economic methods (both theoretical and empirical) can play for comparative legal analysis.

At first glance, many jurists often perceive their own (Private) law to be somewhat hermetic in nature. Their law exists in its own self-contained cosmos, independent from others in the legal universe, yet its atmosphere is sometimes breached by the ‘meteorites’ of international and European law. The reasons for this perception are clear: it is often difficult to ascertain in ones own legal system the influences from foreign (or supranational) law and from foreign legal cultures. This is impeded further by most universities failing to approach this topic, except briefly in the context of international and European law. The following therefore shall attempt to at least attenuate this deficit by providing a ‘birds-eye view’ of German law. In doing so, not only shall the clear marks left in each legal area by foreign and supranational law be shown, but also how they continue to considerably impact upon the German legal landscape and legal culture.

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