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Articles 1 - 12 of 12
Full-Text Articles in Law
The Words Of Comparative Law, Olivier Moréteau
The Words Of Comparative Law, Olivier Moréteau
Journal Articles
While the word "comparative" refers to a cognitive and intellectual activity supposing that there are several elements to compare, the word "law" is used in the singular, as if law was to be compared to itself The whole phrase indicates that comparison takes place within the study of the law, but the use of the singular does not point to a pluralistic approach: what do we mean by law? Should we not talk about "comparing the laws" or "legal comparison"? With a reflection on the words of the law as a starting point, this paper visits the corpus of comparative …
Why Didn't The Common Law Follow The Flag?, Christian Burset
Why Didn't The Common Law Follow The Flag?, Christian Burset
Christian Burset
This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British …
To Compare Or Not To Compare? Reading Justice Breyer, Russell A. Miller
To Compare Or Not To Compare? Reading Justice Breyer, Russell A. Miller
Russell A. Miller
Justice Breyer's new book The Court and the World presents a number of productive challenges. First, it provides an opportunity to reflect generally on extra-judicial scholarly activities. Second, it is a major and important - but also troubling - contribution to debates about comparative law broadly, and the opening of domestic constitutional regimes to external law and legal phenomena more specifically. I begin by suggesting a critique of the first of these points. These are merely some thoughts on the implications of extra-judicial scholarship. The greater portion of this essay, however, is devoted to a reading of Justice Breyer's book, …
Why Didn't The Common Law Follow The Flag?, Christian Burset
Why Didn't The Common Law Follow The Flag?, Christian Burset
Journal Articles
This Article considers a puzzle about how different kinds of law came to be distributed around the world. The legal systems of some European colonies largely reflected the laws of the colonizer. Other colonies exhibited a greater degree of legal pluralism, in which the state administered a mix of different legal systems. Conventional explanations for this variation look to the extent of European settlement: where colonizers settled in large numbers, they chose to bring their own laws; otherwise, they preferred to retain preexisting ones. This Article challenges that assumption by offering a new account of how and why the British …
Freedom Of Religion And Belief In India And Australia: An Introductory Comparative Assessment Of Two Federal Constitutional Democracies, Paul T. Babie, Arvind P. Bhanu
Freedom Of Religion And Belief In India And Australia: An Introductory Comparative Assessment Of Two Federal Constitutional Democracies, Paul T. Babie, Arvind P. Bhanu
Pace Law Review
This article considers the freedom of religion and belief (“free exercise”) in two secular federal constitutional democracies: India and Australia. Both constitutional systems emerged from the former British Empire and both continue in membership of the Commonwealth of Nations, which succeeded it. However, the similarities end there, for while both separate church and state, and protect free exercise, they do so in very different ways. On the one hand, the Indian Constitution contains express provisions which comprehensively deal with free exercise. On the other hand, while one finds what might appear a protection for free exercise in the Australian Constitution, …
The Banking/Commercial Separation Doctrine In Comparative Perspective, Cristie Ford
The Banking/Commercial Separation Doctrine In Comparative Perspective, Cristie Ford
All Faculty Publications
This report, prepared for the Department of Finance, Government of Canada, summarizes research undertaken across five jurisdictions – Australia, Japan, Singapore, the United Kingdom (UK), and the United States (US, federal level only) – with respect to a particular kind of boundary on the business of banking: the separation of banking business from commercial business. “Commercial” here means the provision of non-financial goods and services. This separation exists under what in the United States has long been referred to as the “banking/commercial separation doctrine”. The report considers the historical justifications for the doctrine in the context of the modern “business …
Terminology Matters: Dangers Of Superficial Transplantation, Silvia Ferreri, Larry A. Dimatteo
Terminology Matters: Dangers Of Superficial Transplantation, Silvia Ferreri, Larry A. Dimatteo
UF Law Faculty Publications
The history of legal transplantations from one legal system to another is as long as law itself. It has numerous edifications and names including reception, borrowing, and influence. Legal transplantations from one legal system to another come at various levels of substance and penetration including the transplantation of a legal tradition (English common law to the United States and the English Commonwealth), transplantation of national law (Turkey's adoption of Swiss Civil Code), transplantation of an area of law (Louisiana's adoption and retention of French sales law), transplantation of a rule or concept (Chinese adoption of principle of good faith), and …
Don’T Steal My Recipe! A Comparative Study Of French And U.S. Law On The Protection Of Culinary Recipes And Dishes Against Copying, Claire M. Germain
Don’T Steal My Recipe! A Comparative Study Of French And U.S. Law On The Protection Of Culinary Recipes And Dishes Against Copying, Claire M. Germain
Working Papers
Food and gastronomy are at the heart of every culture. In 2010, The Gastronomic Meal of the French was listed as Intangible Cultural Heritage of Humanity by UNESCO. Interest in gastronomy became mainstream in the U.S. starting in the late ‘70s/early ‘80s. The emergence of cooking literature, television cooking, celebrity chefs, and competitive cooking programs have now permeated American and French popular culture like never before. It is also a huge business for restaurants. This article examines the legal status of recipes and culinary creations in U.S. and French law, and what can be done to stop others from copying …
Religious Courts In Secular Jurisdictions: How Jewish And Islamic Courts Adapt To Societal And Legal Norms, Rabea Benhalim
Religious Courts In Secular Jurisdictions: How Jewish And Islamic Courts Adapt To Societal And Legal Norms, Rabea Benhalim
Publications
At first glance, religious courts, especially Sharia courts, seem incompatible with secular, democratic societies. Nevertheless, Jewish and Islamic courts operate in countries like the United States, England, and Israel. Scholarship on these religious courts has primarily focused on whether such religious legal pluralism promotes the value of religious freedom, and if so, whether these secular legal systems should accommodate the continued existence of these courts. This article shifts the inquiry to determine whether religious courts in these environments accommodate litigants’ popular opinions and the secular, procedural, and substantive justice norms of the country in which they are located. This article …
Comparative Legal History. Edited By Olivier Moréteau, Aniceto Masferrer, And Kjell A. Modéer. Cheltenham, Uk; Northampton, Ma: Edward Elgar Publishing, 2019 [Book Review], Dana Neacsu
Law Faculty Publications
Comparative Legal History stands out for both its content and its execution. At a time when most law schools devote themselves to the study of hic et nunc (here and now), Comparative Legal History proves there is something more than the rather dogmatic and pragmatic description of what is traditionally recognized as the law. In an age of hyper specialization, it discredits the absurd notion of law as (hard) science. Law, a human product, can easily be the object of scientific observations, but does that scientific observation need to be limited to the study of rules and norms in force …
The Circulation Of Judgments Under The Draft Hague Judgments Convention, Ronald A. Brand
The Circulation Of Judgments Under The Draft Hague Judgments Convention, Ronald A. Brand
Articles
The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission process, …
The Cisg: Applicable Law And Applicable Forums, Ronald A. Brand
The Cisg: Applicable Law And Applicable Forums, Ronald A. Brand
Articles
Despite being in effect for over thirty years, a debate continues on whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) has been a success. With 89 Contracting States, it clearly is widely accepted. At the same time, empirical studies show that private parties regularly opt out of its application. It has served as a model for domestic sales law, and as an important educational tool. But has it been a success? In this article I consider that question, and suggests that the scorecard is not yet complete; and that it will perhaps take significantly …