Law Commons^™

Choix Et Défis De L’Herméneutique Juridique. Notes Minimes, Mauro Bussani

Mauro Bussani

The paper focuses on the widespread hetero-referentiality one can witness, especially in certain circuits, between jurists and philosophers: the former trying to base technical arguments on one or the other (most of the times: fashionable) philosophical trends; the latter theorizing about this or that use of a given legal notion – often referring to orientations by now obsolete, or which only partly, or vaguely grasp the law as it is. After examining the modes through which the legal debate selects the philosophical authorities able to serve as auxiliary sources of the jurist’s cultural legitimization, the essay analyzes the most remarkable …

Abortion And Women's Legal Personhood In Germany: A Contribution To The Feminist Theory Of The State, D. A. Jeremy Telman

D. A. Jeremy Telman

This article looks at abortion regulation in Germany in the context of the full range of laws through which the state specifies the status of women as legal persons. Reviewing Germany's most important abortion law decisions in 1975 and 1993, the article contends that while the Constitutional Court struck a balance between the East German legacy of reproductive freedom and West Germany's robust protections of the right to life, it did so by undermining the legal structures that had facilitated full civil, economic and political equality for women in East Germany through legal regimes geared towards protecting women's reproductive autonomy.

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

Responsabilité Des Sujets Atteints De Troubles Mentaux En Italie Et En Common Law, Mauro Bussani

Mauro Bussani

The aim of this paper is to challenge the traditional principle of Western negligence law according to which, whatever a person’s characteristics are, his/her behavior should be judged against the standard of care expected from the so-called ‘reasonable person’. In particular, the paper focuses on a special category of subjects who are ‘weaker’ than the average because suffering from a psychological disability. Through the comparative analysis of Italian, English, and American tort law rules involving these persons, the paper shows how courts are acutely aware of the need to introduce some degree of flexibility into the median fault parameter.

Making The Other Path Efficient. Economic Analysis And Tort Law In Less Developed Countries, Mauro Bussani, Ugo Mattei

Mauro Bussani

The aim of this paper is to advance our understanding of whether and to what extent Law&Economics has a future in addressing, both from a positive and from a normative point of view, legal systems which are outside the Western legal tradition. The analysis proceeds in the following way: Part One focuses on general issues of Comparative Law&Economics. We try to explain from an economic perspective what characteristics make Western law homogeneous in order to have a clear picture of which legal systems we are considering. Part Two discusses some of the assumptions of Law&Economics which may limit the possibility …

Women's Rights And Political Economy, Tamara Lothian

Tamara Lothian

No abstract provided.

Tort Law And Development: Insights Into The Case Of Ethiopia And Eritrea, Mauro Bussani

Mauro Bussani

The primary purpose of the article is to enrich the understanding of tort laws in Ethiopia and Eritrea and of how these laws deal with environmental issues. Its secondary goal is to clarify the affinities, often hidden, between the issues raised by tort law in developing countries at present times, and the same issues as they emerged in the Western tradition in the past.

Rising Temperatures: Rising Tides, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Transboundary environmental problems do not distinguish between political boundaries. Global warming is expected to cause thermal expansion of water and melt glaciers. Both are predicted to lead to a rise in sea level. We must enlarge our paradigms to encompass a global reality and reliance upon global participation.

Reinventing Labor Law: A Rejoinder, Tamara Lothian

Tamara Lothian

No abstract provided.

The Democratized Market Economy In Latin America (And Elsewhere): An Exercise In Institutional Thinking Within Law And Political Economy, Tamara Lothian

Tamara Lothian

No abstract provided.

The Criticism Of The Third-World Debt And The Revision Of Legal Doctrine, Tamara Lothian

Tamara Lothian

No abstract provided.

Problemi Dell'illecito: Superiorità Soggettive E Giudizio Sulla Colpa, Mauro Bussani

Mauro Bussani

A long-standing tenet of Western negligence law holds that the standard against which the defendant’s behavior should be evaluated is that of a ‘person without qualities’, a fictitious individual allegedly endowed with average knowledge, conventional musculature, ordinary reactions, commonplace skills, and normal intelligence and memory. This paper is based on a comparative analysis of Italian, French, and Anglo-American rules. Its aim is to challenge the ‘person without qualities’ standard, and to demonstrate its empirical, theoretical, and policy flaws when the defendant is a ‘super(wo)man’, that is, someone who, differently from the average (wo)man, is endowed with the physical/intellectual capabilities, the …

Faiblesse Oblige, Mauro Bussani

Mauro Bussani

A general principle of Western negligence law is that, whatever a person’s characteristics, (dis)abilities, strengths and weaknesses, his/her behavior should be judged against the standard of care expected from the ‘reasonable person’. The latter is a person allegedly endowed with average knowledge, conventional musculature, ordinary reactions, commonplace skills, and normal intelligence and memory – a ‘person without quality’. The aim of this paper is to offer comparative evidence to the fact that the ‘person without quality’ rule (ought not be, and) actually is not imposed upon below-average defendants – that is, persons who are weaker than the ‘reasonable person’, like …

Constitutional Design And Law: The Political Economy Of Cabinet And Congressional Government, Matthew S. R. Palmer

The Hon Justice Matthew Palmer

The dissertation takes a political economy approach to constitutional design and legislation in the Westminster (Cabinet) and US (Congressional) models of government. Part I develops the economics of comparative political organization by constructing a theoretical framework for analyzing constitutional design. Part II applies the framework to distinguish the essences of the Cabinet and Congressional systems of constitutional design in the contexts of US and Canadian federal government. Part III analyzes the effects of the different constitutional designs on the processes of legislating in each system and on the substantive characteristics of legislation in each system. The analysis is subjected to …

In Defense Of Environmental Rights In East European Constitutions, Elizabeth F. Brown

Elizabeth F Brown

This Article analyzes how the environmental rights in East European constitutions could have been drafted to make them enforceable, rather than merely aspirational.

The Comparative Method And Law Reform, Darius Whelan

Darius Whelan

This 1988 LLM thesis examines law reform, the comparative method, and the combination of these two elements. A broad definition of law reform is adopted, to include law reform by legislators and judges, and proposals for law reform from law reform agencies and from academics. It is explained that the comparative method (commonly referred to as comparative law) is still at an experimental stage, and that no particularly rigid method of comparison has been adopted for the purposes of this thesis. The theory of reception and legal transplants is discussed, from Montesquieu to date. Particular emphasis is placed on the …

Nociones Generales De Derecho Procesal Civil, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Fundamentos Del Derecho Procesal Civil, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.