Law Commons^™

Restating The Civil Law Of Quasi-Contract: Negotiorum Gestio And Unjust Enrichment, Nikolaos A. Davrados

Journal of Civil Law Studies

This Article restates the Louisiana civil law of negotiorum gestio and unjust enrichment, one decade after the common-law Third Restatement of Restitution and Unjust Enrichment. The Article first redefines and re-designates the term "quasi-contract" from a false source of obligations to a valid practical term describing the two separate institutions of negotiorum gestio and unjust enrichment. Based on this renewed understanding of quasi-contract, the Article proceeds to a detailed commentary on the revised Louisiana law of negotiorum gestio and unjust enrichment (which includes the special action for payment of a thing not due and the general action for enrichment without …

Status Quo Kewenangan Perusahaan Asuransi Dalam Menerbitkan Produk Penjaminan Pasca Berlaku Efektifnya Undang-Undang No. 1 Tahun 2016 Tentang Penjaminan, Kalih Krisnareindra

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Risk is something that is always exist in various type of business. Risk management commonly used the assistance of insurance companies to manage its risk by risk transfer. The current prevailing law allows the insurance industry to develop its products wider than the explicitly defined business lines in the regulation. Historically, the guarantee/surety business has been marketed jointly between insurance companies and guarantee/surety companies. This can be traced through laws and regulations that provide the authority to both type of companies to issue guarantee/surety products. But with the enactment of Law No. 1 of 2016 concerning Guarantees, there is an …

L’Utilité Du Droit Comparé (The Utility Of Comparative Law), Vivian Grosswald Curran

Book Chapters

French Abstract: Cette contribution était le discours d’ouverture à la Conférence des 100 ans de l’Institut Édouard Lambert à l’Université de Lyon. Elle discute de l’utilité du droit comparé dans le monde actuel d’une perspective technique dans le cadre d’une situation aux États-Unis et d’une perspective plus politique dans le cadre d’un arrêt de la CJUE.

English Abstract: This essay was delivered as a keynote address to the conference to celebrate the 100th anniversary of the Institut Édouard Lambert at the University of Lyon. It argues for the usefulness of comparative law in today’s world from a technical angle in …

Status Quo Kewenangan Perusahaan Asuransi Dalam Menerbitkan Produk Penjaminan Pasca Berlaku Efektifnya Undang-Undang No. 1 Tahun 2016 Tentang Penjaminan, Kalih Krisnareindra

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Risk is something that is always exist in various type of business. Risk management commonly used the assistance of insurance companies to manage its risk by risk transfer. The current prevailing law allows the insurance industry to develop its products wider than the explicitly defined business lines in the regulation. Historically, the guarantee/surety business has been marketed jointly between insurance companies and guarantee/surety companies. This can be traced through laws and regulations that provide the authority to both type of companies to issue guarantee/surety products. But with the enactment of Law No. 1 of 2016 concerning Guarantees, there is an …

The European Court Of Justice At Work: Comparative Law On Stage And Behind The Scenes, Michele Graziadei

Journal of Civil Law Studies

The European Court of Justice (ECJ) has often been hailed as an engine of European integration. Entrusted with the task of securing the uniform interpretation of the law of the European Union—among other functions—the ECJ makes use of comparative law for a variety of purposes. The very composition of the Court and its peculiar linguistic regime make the Court a major comparative law laboratory. Under the Treaties, the Court is explicitly authorised to resort to comparative law as a method of judicial interpretation with regard to certain aspects of European law. But comparative law is an essential tool for the …

Borrowing American Ideas To Improve Chinese Tort Law, Yongxia Wang

St. Mary's Law Journal

As China develops its modern jurisprudence it faces a choice between emulating the legal frameworks of civil law countries or common law countries. Thus far, the civil law path has allowed for a rapid expansion of Chinese tort law, but jurists have found difficulty in applying such generalized statutory schemes with the absence of supporting judicial interpretation. Cognizant of the differences between the public policy of common law countries and China, Vincent Johnson’s Mastering Torts (Měiguó Qīnquán Fǎ) provides this guidance through the lens of American tort law. The hornbook takes care to simplify the role of judicial …

Hazing Laws In Louisiana: Criminal Penalty Masquerading Under The Guise Of Punitive Damages, Brittney Esie

Journal of Civil Law Studies

No abstract provided.

Canada’S Legal Traditions: Sources Of Unification, Diversification, Or Inspiration?, Rosalie Jukier

Journal of Civil Law Studies

Quebec, the only province within Canada to follow the civil law tradition, is an ideal microcosm for the study of unity and diversity within legal orders. The question of whether Quebec’s civilian legal tradition should be interpreted and applied so as to be in unity with the common law or, rather, adhere to its own distinct legal culture has pervaded doctrine and jurisprudence for over a century. Inter-estingly, the pendulum has swung widely. Quebec has seen moments when the philosophy of the Supreme Court of Canada was one of unification and harmonization of Quebec law with the common law tradition, …

What Medical Risks Should Physicians Disclose To Their Patients? Towards A Better Standard In American And French Medical Malpractice Law, Alina-Emilia Ciortea

Journal of Civil Law Studies

This essay discusses the historical and evolutionary back-ground of the doctrine of informed consent in medical malpractice cases in order to provide the reader with a detailed and a unique comparative perspective of the law in the United States and in France, along with some cross-references to other legal systems across the globe.

In order to achieve the desired goal, this paper conducts the analysis based on a hypothetical situation. Starting from these facts, the paper shows how and if the American and the French standards addressing the scope of the physician’s duty to disclose the risks intrinsic to the …

China: Fragmented Rights And Tragedy Of Anticommons:Evidence From China’S Coastal Waters, Bing Shui

Journal of Civil Law Studies

The ownership of, and rights to, coastal waters are exhibited on a cumulative scale ranging from commons-like to private use. As an example of a natural resource with complex and interlinked ecosystems, coastal waters give rise to many kinds of legal norms and pol-icy instruments. As shown by my investigation of China’s coastal waters, people are willing to pay for legal rights which guarantee exclusive access, regardless of the relatively high cost. The statistical data further reveals that, when coastal waters are divided, there is a negative correlation between fragmentation of the seas and sea-based production. Therefore, based on the …

Addressing Early Marriage: Culturally Competent Practices And Romanian Roma (“Gypsy”) Communities, Judith Hale Reed

Judith A Hale Reed

Early marriage affects many communities around the world. Examples of commonly practiced early marriage can be found today in the U.S., India, Syria, and many other places. Although most countries have instituted minimum age laws for marriage, so that legal marriage can only occur after an age set by law, early marriage is still practiced for tradition, control, security, and other reasons. This article explores the harms of early marriage and the international instruments meant to defend against these harms in Part II. Part III reviews theoretical perspectives from legal anthropology and presents a case study of early marriage in …

"Unnatural Deaths," Criminal Sanctions, And Medical Quality Improvement In Japan, Robert B. Leflar

Robert B Leflar

A worldwide awakening to the high incidence of preventable harm resulting from medical care, combined with pressure on hospitals and physicians from liability litigation, has turned international attention to the need for better structures to resolve medical disputes in a way that promotes medical safety and honesty toward patients. The civil justice system in the United States, in particular, is criticized as inefficient, arbitrary, and sometimes punitive. It is charged with undermining sound medical care by encouraging wasteful expenditures through defensive medicine; by driving information about medical mistakes underground where it escapes analysis, undercutting quality improvement efforts; and by forcing …

The Law Of Medical Misadventure In Japan, Robert B. Leflar

Robert B Leflar

This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations’ medical law systems. The paper addresses criminal sanctions for Japanese physicians’ negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries. Among the paper’s findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events at …

Public And Private Justice: Redressing Health Care Harm In Japan, Robert B. Leflar

Robert B Leflar

Japanese legal structures addressing health care-related deaths and injuries rely more on public law institutions and rules than do the common-law North American jurisdictions, where private law adjudication is predominant. This article explores four developments in 21st-century Japanese health care law. The first two are in the public law sphere: criminal prosecutions of health care personnel accused of medical errors, and a health ministry-sponsored “Model Project” to analyze medical-practice-associated deaths. The article addresses a private law innovation: health care divisions of trial courts in several metropolitan areas. Finally, the article introduces Japan’s new no-fault program for compensating birth-related obstetrical injuries. …

Privatization And Public Law Values: A View From France, Manuel Tirard

Indiana Journal of Global Legal Studies

This article uses a comparative approach to explore privatization and its consequences on public law values. It discusses the French model for protecting these values, which limits the scope of privatization and applies a legal regime within which public law norms play an active role. While it does not suggest that this model can or should be applied in the United States, it does express that the French experience can enrich American debates on the subject.

Democracy and the Transnational Private Sector, Symposium. Indiana University School of Law – Bloomington, April 12-13, 2007.

Medical Error As Reportable Event, As Tort, As Crime: A Transpacific Comparison, Robert B. Leflar, Futoshi Iwata

Robert B Leflar

All nations seek to reduce the human toll from medical error, but variations in legal and institutional structures guide those efforts into different trajectories. This article compares legal and institutional responses to patient safety problems in the United States and Japan, addressing developments in civil malpractice law (including discoverability of internal hospital documents), administrative practice (including medical accident reporting systems), and - of particular significance in Japan - criminal law. In the U.S., battles over rules of malpractice litigation are fierce; tort law occupies center stage. The hospital accreditation process plays a critical role in medical quality control, and peer …

The Battle To Establish An Adversarial Trial System In Italy, William T. Pizzi, Mariangela Montagna

Publications

No abstract provided.

Informed Consent And Patients' Rights In Japan: 2001 Epilogue, Robert B. Leflar

Robert B Leflar

Japan is on a steeper trajectory toward the incorporation of informed consent principles into medical practice than the “gradual transformation” observed in a 1996 article, Informed Consent and Patients’ Rights in Japan. Among the most significant recent developments from 1996 to 2001 have been these seven: (1) the 1997 enactment of the Organ Transplantation Law permitting the use of brain death criteria in limited circumstances in which informed consent is present; (2) the strengthening of patients’ rights in clinical drug trials; (3) the continued trend toward increasing disclosure to patients of cancer diagnoses; (4) initiatives by the health ministry toward …

Punishment And Procedure: A Different View Of The American Criminal Justice System, William T. Pizzi

Publications

No abstract provided.

Informed Consent And Patients' Rights In Japan, Robert B. Leflar

Robert B Leflar

This article analyzes the development of the concept of informed consent in the context of the culture and economics of Japanese medicine, and locates that development within the framework of the nation's civil law system. Part II sketches the cultural foundations of medical paternalism in Japan; explores the economic incentives (many of them administratively directed) that have sustained physicians' traditional dominant roles; and describes the judiciary's hesitancy to challenge physicians' professional discretion. Part III delineates the forces testing the paternalist model: the undermining of the physicians' personal knowledge of their patients that accompanies the shift from neighborhood clinic to high-tech …

Some Worries About Sentencing Guidelines, William T. Pizzi

Publications

No abstract provided.

Understanding Prosecutorial Discretion In The United States: The Limits Of Comparative Criminal Procedure As An Instrument Of Reform, William T. Pizzi

Publications

No abstract provided.

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

CIVIL JUDGMENT RECOGNITION AND THE INTEGRATION OF MULTIPLE STATE ASSOCIATIONS: CENTRAL AMERICA, THE UNITED STATES OF AMERICA, AND THE EUROPEAN ECONOMIC COMMUNITY

By Robert C. Casad

Lawrence: The Regents Press of Kansas, 1981. Pp. 258.$25.00.

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COMPARATIVE LAW YEARBOOK

VOL. 4, 1980

Edited by Dennis Campbell

The Hague/Boston/London: Martinus Nijhoff Publishers, 1981. Pp. 371.

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CONSTITUTION-MAKING: PRINCIPLES, PROCESS, PRACTICE

By Edward McWhinney

Toronto: University of Toronto Press, 1981.Pp. 231. $20.00.

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THE ENVIRONMENTAL LAW OF THE SEA

Edited by Douglas M.Johnston

Gland, Switzerland: International Union for Conservation of Nature and Natural Resources, 1981. Pp. 419.

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INTERNATIONAL BUSINESS: ENVIRONMENTS AND …