NOTICE: Deakin and Pistor on Legal Origin Theory

Simon Deakin (Cambridge) and Katharina Pistor (Columbia) have recently edited Legal origin theory (2012):

In this volume, Professor Deakin and Professor Pistor include those key articles which highlight the major contributions to, but also the inherent limits of, the legal origin literature. They consider the merits of this approach in the context of three fields of inquiry: the study of comparative law; the analysis of the relation between law and markets; and the understanding of the role of legal systems in social ordering.

In their thought-provoking new introduction, the editors discuss the modifications to the original legal origin hypothesis over time and point the way for the future development of this influential, yet controversial, theory.

I confess that I’m sceptical of the theory, but there are some fine articles in the collection, including:

CALL FOR PAPERS: Legal Theory and Legal History

The Legal Theory and Legal History Research Group of the Department of Law of Queen Mary, University of London will hold a very exciting conference from 12-13 April 2013.

Its theme is 'Legal Theory and Legal History: A Neglected Dialogue?': 

Apart from some notable exceptions, much of contemporary legal theory is uninformed by history, including legal history. This is deeply regrettable, for legal theories may be vastly improved by being informed, and perhaps more importantly, challenged by historical contexts. Theories of law, one might say, are better if they are forged at the coal-face of historical research. Similarly, one could argue that legal histories are better when they draw on, and themselves contribute to, the conceptual resources of legal theory.

Somewhat more radically, if one agrees law does not have a nature, but a culture, then one must account for how the culture of law changes, and has changed, over time. This, by necessity, demands a historically-informed methodology. Similarly, the problem of change is an unavoidable one in legal theory, whether that be change in legal regimes or changes in certain areas of the law – here, again, the resources of history, including the philosophy of history, are invaluable. Putting things a little more colourfully, one could say that legal ideas cannot but be understood historically.

Further, legal theory has, of course, its own history: legal theories are not disconnected islands, but rather interventions in a long series of dialogues and polylogues amongst theorists. As many have observed, and described, legal theory’s history needs to be informed not only by such dialogues and polylogues amongst theorists, but also by awareness of the theorist’s immersion in political, economic and other conditions of his or her time and place – there, once more, a serious engagement with history is important.

This conference - the annual conference of the UK Branch of the IVR - is designed to bring together legal theorists and legal historians (including historians of legal theory and political thought) in an attempt to facilitate and encourage dialogue between the two disciplines.

 The Call for Papers: 

is issued for the open paper sessions. A group of selectors from the Legal Theory and Legal History Group at Queen Mary will select papers based on abstracts. Abstracts are to be no longer than one A4 page, and should include the name and affiliation of the author(s).

NOTICE: Comparative Law Articles

Additional articles from SSRN have been noted by our friend in the Irish Society of Comparative Law:

 

• Lyke, Sheldon Bernard, Brown Abroad: An Empirical Analysis of Foreign Judicial Citation and the Metaphor of Cosmopolitan Conversation (March 2, 2012). Vanderbilt Journal of Transnational Law, Vol. 45, p. 83, 2012.

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.

• Parisi, Francesco and Luppi, Barbara, Quantitative Methods in Comparative Law (May 2, 2012). Minnesota Legal Studies Research Paper No. 12-20.

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.

• Janssen, Andre and Schulze, Reiner, Legal Cultures and Legal Transplants in Germany (2011). European Review of Private Law, Vol. 2, pp. 225-256, 2011.

NOTICE: New volumes of (i) Transnational Legal Theory and (ii) Law and Humanities

The latest volumes of Transnational Legal Theory and Law and Humanities, both published by Hart Publishing, are now out:

Transnational Legal Theory includes:

What is ‘General’ Jurisprudence? A Critique of Universalistic Claims by Philosophical Concepts of Law

Brian Tamanaha

A Plural Account of the Transnational Law Merchant

Leon E Trakman

Private International Law Beyond the Schism

Horatia Muir Watt

Law and Humanities includes:

Between the Nihilism of the Young and the Positivism of the Old: Justice and the Novel in DH Lawrence

Desmond Manderson

Screening the Law in China: Law, Image and Evidence in Three Documentaries on HIV/AIDS Cases by Ai Xiaoming

Marco Wan

NOTICE: Comparative Law Articles

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:

NOTICE: SSRN Articles

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. 

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.

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.  

Call for Papers: Int'l Congress on Mediation

The Centre for Public Administration and Public Policies (CAPP) of the School of Social and Political Sciences (ISCSP), Technical University of Lisbon (UTL), will host the III International Congress on Mediation in Lisbon from 18-20 October 2012.

The call for papers can be found online here.

You can read the entire announcement below.