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.
