Digital Commons Network^™

U.S. War Powers And The Potential Benefits Of Comparativism, Curtis A. Bradley

Faculty Scholarship

There is no issue of foreign relations law more important than the allocation of authority over the use of military force. This issue is especially important for the United States given the frequency with which it is involved in military activities abroad. Yet there is significant uncertainty and debate in the United States over this issue — in particular, over whether and to what extent military actions must be authorized by Congress. Because U.S. courts in the modern era have generally declined to review the legality of military actions, disputes over this issue have had to be resolved, as a …

How Asian Should Asian Law Be? – An Outsider’S View, Ralf Michaels

Faculty Scholarship

Is there an Asian identity of Asian law, comparable to European identity and therefore similarly useful as a justification for unification projects? If so, what does it look like? And if so, does this make Asia more like Europe, or less so? Or is this question itself already a mere European projection?

This chapter tries to address such questions. In particular, I look at a concrete project of Asian law unification—the Principles of Asian Comparative Law—and connect discussions about its Asian identity with four concepts of Asia. The first such concept is a European idea of Asia and Asian law, …

The European Union: A Comparative Perspective, Ernest A. Young

Faculty Scholarship

This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal—that is, integrated to a comparable degree to the U.S.—with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental—that is, it preserves a center of gravity within the individual member states—with respect to the allocation of governmental …

Cultural Paradigms In Property Institutions, Taisu Zhang

Faculty Scholarship

Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.

This Article develops a “cultural” theory of how property institutions are created and demonstrates that such …

Comparative Law And Private International Law, Ralf Michaels

Faculty Scholarship

No abstract provided.

Jurisdiction, Foundations, Ralf Michaels

Faculty Scholarship

No abstract provided.

Transnationalizing Comparative Law, Ralf Michaels

Faculty Scholarship

Comparative law will not die in the 21st century, but nor can it remain unchanged. Comparative law as we have it today still retains its roots in 1900: it is focused on states, on positive law, and on a scientific approach. Comparative law in the age of transnationalism will have to transnationalize: it must move beyond the state, it must move beyond positive law, and it must endorse cultural approaches. We must retain our critique of legal nationalism, but we must add our critique of uncritical legal universalism.

Up In The Air Over Taxing Frequent Flyer Benefits: The American, Canadian, And Australian Experiences, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.

Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang

Faculty Scholarship

Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households …

“One Size Can Fit All” – On The Mass Production Of Legal Transplants, Ralf Michaels

Faculty Scholarship

Law reformers like the World Bank sometimes suggest that optimal legal rules and institutions can be recognized and then be recommended for law reform in every country in the world. Comparative lawyers have long been skeptical of such views. They point out that both laws and social problems are context-specific. What works in one context may fail in another. Instead of “one size fits all,” they suggest tailormade solutions.

I challenge this view. Drawing on a comparison with IKEA’s global marketing strategy, I suggest that “one size fits all” can sometimes be not only a successful law reform strategy, but …

Transplanting The European Court Of Justice: The Experience Of The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter, Osvaldo Saldias

Faculty Scholarship

Although there is an extensive literature on domestic legal transplants, far less is known about the transplantation of supranational judicial bodies. The Andean Tribunal of Justice (ATJ) is one of eleven copies of the European Court of Justice (ECJ), and the third most active international court. This article considers the origins and evolution of the ATJ as a transplanted judicial institution. It first reviews the literatures on legal transplants, neofunctionalist theory, and the spread of European ideas and institutions, explaining how the intersection of these literatures informs the study of supranational judicial transplants. The article next explains why the Andean …

Comparative Law As A Bridge Between The Nation-State And The Global Economy: An Essay For Herbert Bernstein, Richard M. Buxbaum

Faculty Scholarship

Professor Richard M. Buxbaum delivered the Fourth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2005 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In this paper, Richard Buxbaum is primarily concerned with the potential of comparative law as a method to bridge the disparities between the laws of nation-states and the needs of the globalized economy. Buxbaum investigates three separate roles for comparative law in closing this gap: First, he discusses the potential uses of comparative law with regard to …

Towards A Right To Privacy In Transnational Intelligence Networks, Francesca E. Bignami

Faculty Scholarship

Antiterrorism intelligence sharing across national borders has been trumpeted as one of the most promising forms of networked global governance. By exchanging information across the world, government agencies can catch terrorists and other dangerous criminals. Yet this new form of global governance is also one of the most dangerous. Even at the domestic level, secrecy and national security imperatives have placed intelligence agencies largely beyond legal and democratic oversight. But at the global level, accountability is missing entirely. Global cooperation among national intelligence agencies is extraordinarily opaque. The nature of the international system compounds the problem: these actors do not …

Civil Procedure To Enforce Transnational Rights?, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Civil Society And International Organizations: A Liberal Framework For Global Governance, Francesca E. Bignami

Faculty Scholarship

An earlier draft of this Article was presented at a faculty workshop at the University of Illinois College of Law. (Author's Manuscript, March 2005) This analysis of how civil society can contribute to a better system of global governance draws on the political philosophy of civil society and the comparative law of democracy. Its first part describes the civil society phenomenon in three different international organizations: the World Bank, the World Trade Organization, and the European Union. Part Two puts forward the moral principle upon which my argument rests: liberal democracy. The next part sets the stage for the discussion …

European Versus American Liberty: A Comparative Privacy Analysis Of Antiterrorism Data Mining, Francesca E. Bignami

Faculty Scholarship

It is common knowledge that privacy in the market and the media is protected less in the United States than in Europe. Since the terrorist attacks of September 11, 2001, it has become obvious that the right to privacy in the government sphere too is protected less in the United States than in Europe. This Article brings alive the legal difference by considering the case-real in the United States, hypothetical in Europe-of a spy agency's database of call records, created for the purpose of identifying potential terrorists. Under U.S. law such an antiterrorism database might very well be legal. But …

Transgovernmental Networks Vs. Democracy: The Case Of The European Information Privacy Network, Francesca E. Bignami

Faculty Scholarship

No abstract provided.

Constitutional Borrowing And Nonborrowing, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.

Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova

Faculty Scholarship

No abstract provided.

Book Review, Curtis A. Bradley

Faculty Scholarship

Reviewing John Rogers, International Law and United States Law (1999)

Markets, Democracy, And Ethnicity: Toward A New Paradigm For Law And Development, Amy L. Chua

Faculty Scholarship

No abstract provided.

Moths To The Light: The Dubious Attractions Of American Law, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Whose Advantage After All: A Comment On The Comparison Of Civil Justice Systems, Herbert L. Bernstein

Faculty Scholarship

No abstract provided.

Pure Comparative Law And Legal Science In A Mixed Legal System, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Property And Tort In Nuclear Law Today, Kazimierz Grzybowski, William Dobishinski

Faculty Scholarship

No abstract provided.

American Lawyer Looks At Civil Jury Trial In Scotland, Paul Hardin Iii

Faculty Scholarship

No abstract provided.