23 May 2012


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. 

NOTICE: Head, Mann, and Kozlina on Transnational Governance

Michael Head, Scott Mann, and Simon Kozlina (eds), Transnational Governance: Emerging Models of Global Legal Regulation (Ashgate, 2012) has just been published.

The book description reads:

As globalization continues to spread and evolve, so nation-states attempt to govern financialization, tax evasion, corruption, terrorism, civil and military conflicts and environmental dangers, social polarization and the complexities in human rights implementation, by institutional and transnational means. This volume discusses these issues from different legal perspectives and highlights the challenges of governing human activity in an age of remarkable interconnectedness.

Covering a broad range of policy areas and analysis of emerging forms of governance from liberal to critical and Marxist, the chapters are legal in their approach and form an important contribution to the growing study of emergent forms of authority, coordination and power developing in response to the challenges presented by some of the key contemporary governance issues in the first half of the twenty-first century.

21 May 2012

NOTICE: Macdonald on Legal Studies Programmes

Roderick Macdonald, a member of our Advisory Board, has recently posted 'Does Law Have a Place in the Modern University?: Or Every Great University Needs a Legal Studies Programme' on SSRN.

The brief abstract reads:

Universities are facing increasing pressure to be relevant for students entering the job market. Many see the idea of a liberal arts education as doomed to disappear. Yet law faculties are under increasing pressure to become less professional and to broaden their curriculum with interdisciplinary courses in the liberal arts. Might it be that the study of law will reclaim the central role that it played in the University a millennium ago?

NOTICES: Transplants and Transnational law

The following SSRN articles have recently been noted on the blog of the Irish Society of Comparative Law: 

Peerenboom, Randall, Toward a Methodology for Successful Legal Transplants (January 9, 2012).  

Global efforts to promote rule of law and good governance have led to renewed interest in legal transplants. Many reforms projects have focused on the substance of legal transplants, prescribing particular laws, practices or institutions, concepts, norms and attitudes – usually those found in the advanced economies of Euro-America – for developing countries. The results of such projects have been disappointing. The lackluster results have called attention to the need to develop a workable methodology for legal reforms, focusing on the processes of reform. Such a methodology must be based on a better theoretical and empirical understanding of the conditions that determine the success or failure of legal transplants. Part I provides a general overview of the legal transplant literature, focusing on descriptions, prediction and evaluation. One of the shortcomings of current rule of law promotion programs is that they tend to prescribe a common set of 'best practices' for all countries. Relatively little work has been done on differentiating developing countries and developing categories or ideal types based on the types of challenges they face. Accordingly, Part I lays the groundwork for a methodology of legal reforms based on differential analysis by first distinguishing between three 'exceptional cases': failed states, post-conflict states, and transitional states. In particular, Part I contrasts the particular problems facing low-income countries (LICs) with those facing middle-income countries (MICs). Part II then develops a preliminary methodological framework for assessing legal reforms and legal transplants. Part III concludes.

Perju, Vlad, Constitutional Transplants, Borrowing, and Migrations (January 9, 2012). OXFORD HANDBOOK ON COMPARATIVE CONSTITUTIONAL LAW, M. Rosenfeld , A. Sajo, eds., Oxford University Press, 2012; Boston College Law School Legal Studies Research Paper No. 254.