Law Commons^™

Chevron Abroad, Kent H. Barnett, Lindsey Vinson

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This Article presents our comparative findings of how courts in five other countries review agency statutory interpretation. These comparisons permit us to understand and participate better in current debates about the increasingly controversial Chevron doctrine in American law, whereby courts defer to reasonable agency interpretations of statutes that an agency administers. Those debates concern, among other things, Chevron 's purported inevitability, functioning and normative propriety. Our inquiry into judicial review in Germany, Italy, the United Kingdom, Canada, and Australia provides useful and unexpected findings. Chevron, contrary to some scholars' views, is not inevitable because only one of these countries has …

Judicial Federalism In The European Union, Michael Wells

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This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples of …

Finding International Law, Part Ii: Our Fragmenting Legal Community, Harlan G. Cohen

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Is there an “International Community?” This Article suggests that there is not, that the oft-discussed fragmentation of international law reveals that there are in fact multiple overlapping and competing international law communities, each with differing views on law and legitimacy.

This Article reaches this conclusion by taking a fresh look not only at the sources of fragmentation, but at the sources of international law itself. Building on earlier work rethinking international law’s sources and drawing insights from legal philosophy, compliance theory, and international relations, this Article takes a closer look at three areas that have challenged traditional interpretations of international …

A Common Lawyer’S Perspective On The European Perspective On Punitive Damages, Michael Wells

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Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems. This paper argues that the main reasons for the difference are historical and cultural. Roman law and the French Revolution heavily influenced the civil law. Civilians were taught that legal development comes from the top down. They learned to treat law as a system of general principles and to resist anomalies. They found it relatively easy to reject the intrusion of criminal themes into private law. The common law developed one case at a time, with no particular emphasis on systematic coherence. It was …

Repraesentatio In Classical Latin, Alan Watson

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The Romans knew well the twin concepts of representation and representatives in law suits and in the relationships between father and son, and owner and slave. But for these concepts they did not use the terms repraesentare or any cognate.

To Tertullian, it seems, goes the credit of first using repraesentare and repraesentator in their modern senses of <> and <>. That his context is theological probably should not surprise since he is, above all, a theologian.

Thus he uses repraesentare to mean that the one larger and more important may represent the many and less important. This usage had a …

Lord Mansfield; Judicial Integrity Or Its Lack; Somerset's Case, Alan Watson

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I write this after re-reading Steven M Wise's Though the Heavens May Fall. My argument, if convincing, undermines the basis of the book. Probably the most famous decision in English law is that of Lord Mansfield in Somerset v. Stewart in 1772. It is very short and very dramatic; indeed, it is so rhetorical that much of what is vital is overlooked -- as it was meant to be. Somerset was Stewart's slave in Virginia and was brought to England by his owner. Somerset travelled extensively in the service of his master, to Bristol and Edinburgh, for example. But two …

Plea Bargaining At The Hague, Julian A. Cook

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Plea bargaining has come to The Hague. For most of its existence, the International Criminal Tribunal for the Former Yugoslavia (ICTY) shunned plea bargains. However, under pressure from United Nations member states and the impending deadline for the resolution of its caseload, the ICTY has increasingly relied on plea bargains in recent months. This Article exposes the deficiencies in guilty plea procedures at The Hague, particularly those designed to assess whether a plea is fully informed and voluntary. In a series of case studies, the Article argues that judicial questioning techniques have exploited the vulnerable state of defendants appearing before …

Fig Leaves, Fairytales, And Constitutional Foundations: Debating Judicial Review In Britain, Lori A. Ringhand

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This paper examines an ongoing debate about the origins and legitimacy of judicial review as practiced in Britain. I begin by examining how British law traditionally has attempted to justify judicial review of governmental actions. I then discuss how that orthodox view has been challenged, and how the proponents of the orthodoxy responded to that challenge. In doing so, I explain how the British debate has evolved into a far-reaching examination of the role of interpretive methodologies in legitimating judicial power. I conclude by exploring how the richness and depth of the British discussion can inform the larger debate about …

Two Early Codes, The Ten Commandments And The Twelve Tables: Causes And Consequences, Alan Watson

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Comments on the legal history of the ten commandments and the Roman Twelve Tables, and a comparison of the two legal collections. This paper also discusses the peculiarities in the traditions behind the collection of these laws; and the rules of behavior between humans covered by these laws.

Secured Credit And Insolvency Law In Argentina And The U.S.: Gaining Insight From A Comparative Perspective, Guillermo A. Moglia Claps, Julian B. Mcdonnell

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It is not the purpose of this study to argue for or against changes in the secured credit or insolvency law of Argentina or the U.S. The perpetual clash of interested noted by James Madison and the contemporary pressures of the global economy are likely to assure that these areas of law will be subject to continuing scrutiny in both countries. Instead, we first urge that the law governing the creation and enforcement of security devices and the way in which insolvency laws impact these devices be considered together as part of one system of financing. The power which secured …

A Common Private Law For Europe, Alan Watson

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A satisfactory private law for Europe is not primarily to be sought for in the most common solutions, themselves the result of borrowing. Nor in established rules, themselves the result of longevity, and lack of governmental incentive in innovating. Nor should it be sought in intermediate positions of various mixed systems, themselves the results of the features just above described. Rather it is to be found in the need for authority. This means that a common law for Europe requires the acceptance of a uniform system of adjudicating differences within a standard framework of the necessary sources of law. Authority …

Spotting Money Launderers: A Better Way To Fight Organized Crime?, Diane Marie Amann

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Money laundering investigations have been much in the news of late. There have been stories that Radil Salinas de Gortari laundered kickbacks from drug traffickers while his brother was President of Mexico. That Ferdinand Marcos stashed nearly half a billion dollars in Swiss banks while he ruled the Philippines. That two of Mexico's largest banks have pleaded guilty to laundering charges stemming from a controversial U.S. sting operation. That the former prime minister of Ukraine pleaded guilty to Swiss charges that he laundered $9 million in stolen funds, even as he faced U.S. charges of laundering $114 million. And, of …

Fox Hunting, Pheasant Shooting And Comparative Law, Alan Watson, Khaled Abou El Fadl

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The Roman jurists, ancient rabbis and Muslim jurists were very different people. Above all, the rabbis and Muslim jurists were engaged on a search for law as truth. And the Roman jurists were much more obviously upper-class gentlemen.91 But the similarities are great. All three had a passion for legal interpretation. They delighted in discussing hypothetical cases. They chased after solutions by ways of reasoning devised by themselves. Practical utility, while present, was in the background. At times, to outsiders, their opinions seem outr6, even callous, remote from reality. They have little interest in what actually happens in court: their …

The Structure Of Blackstone's Commentaries, Alan Watson

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Duncan Kennedy's view of Sir William Blackstone's Commentaries on the Laws of England as the first systematic attempt to present a theory of the whole common law system is interesting but wrong. Blackstone himself listed his predecessors, "those who have laboured in reducing our laws to a System": Glanville, Bracton, Britton, the author of Fleta, Fitzherbert, Brook, Lord Bacon, Sir Edward Coke, Dr. Cowell, Sir Henry Finch, Dr. Wood, Sir Matthew Hale. Certainly their arrangements are not free from defects. In particular, as Blackstone pointed out, the arrangement of Fitzherbert and Brook was alphabetical, and Bacon purposely avoided any regular …

Curses, Oaths, Ordeals And Tials Of Animals, Alan Watson

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To the outsider, a foreign legal system may at times appear irrational, with a belief in the efficacy, usually with supernatural assistance, of curses, oaths and ordeals, and that animals may properly be punished, even restrained from anti-human behaviour, after a criminal trial. But caution must be exercised. There may be little real belief that the deity will intervene-for instance, that the ordeal will reveal guilt or innocence. Rather, the society may be faced with an intolerable problem, with no reasonable solution, and the participants may resort to extraordinary legal measures as a "Last Best Chance", or "The Second Best". …

Aspects Of Reception Of Law, Alan Watson

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In most places at most times borrowing is the most fruitful source of legal change. The borrowing may be from within the system, by analogy - from negligence in torts to negligence in contract, for instance - or from another legal system. The act of borrowing is usually simple. To build up a theory of borrowing on the other hand, seems to be an extremely complex matter. Receptions come in all shapes and sizes: from taking over single rules to (theoretically) almost a whole system. They present an array of social phenomena that are not easily explained: from whom can …

From Legal Transplants To Legal Formats, Alan Watson

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Most of the time rulers and governments in the Western world as a whole were little interested in making private law. Instead, the task devolved upon some group of the legal elite who became in effect subordinate law makers without having been given power to make law. Thus, Roman jurists as such were private individuals with no ties to government: they made law when their opinions came to win approval from other jurists. English judges in the Middle-Ages and later were appointed to decide cases: the tradition long was that they found the law but did not make it. Continental …

The Importance Of 'Nutshells', Alan Watson

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In modern legal systems, common law and civil law alike, and their spread over many territories in several continents, are inconceivable without the input of Nutshells often written in far-off times and in far-away places. I also want to show that the history of Nutshells vividly illumines themes that I have pressed for decades.3 First, they demonstrate the easy transmissibility of legal rules, institutions, concepts and structures from one society to other, very different, ones. Second, they indicate the frequent longevity of such rules, institutions, concepts and structures. Third, their very success is attributable to the lack of interest by …

French And American Judicial Opinions, Michael Wells

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In this Article, I examine the foundations of American judicial form, in particular the proposition that powerful instrumental considerations support the issuance of reasoned opinions. This project proceeds from the belief that the form of judicial opinions deserves serious scholarly attention despite the broad consensus about its value, because it frames the terms of debate on every issue courts confront. My analysis is built on the view that critical insights into the nature of one's own legal system can be gleaned only by "understand[ing] what [one's] system is not," a task that requires putting aside the internal perspective of a …

Roman Law And English Law: Two Patterns Of Legal Development, Alan Watson

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It is commonplace among scholars to link in thought the growth of Roman law and of English law. S.F.C. Milsom begins his distinguished Historical Foundations of the Common Law with the words: "It has happened twice only that the customs of European peoples were worked up into intellectual systems of law; and much of the world today is governed by laws derived from the one or the other." More strikingly, some scholars see an essential similarity in legal approaches in the two systems. Fritz Pringsheim entitled a well-known article The Inner Relationship Between English and Roman Law. W.W. Buckland and …

The Transformation Of American Property Law: A Comparative Law Approach, Alan Watson

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This Article looks at aspects of a particular societal problem as it was approached at different historical periods in Roman, French, and American property law. The main point of the Article is to clarify understanding of the American course of development through an awareness of how the problem was dealt with elsewhere. This awareness will cast doubt on the simplicity of the American course of development as explained in a distinguished book, and on the relationship of the legal development to economic change. In THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, Morton J. Horwitz seeks "to show that one of the …

A House Of Lords' Judgment, And Other Tales Of The Absurd, Alan Watson

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In this paper I want to look at four approaches to deciding a case in different societies-contemporary England, uncodified civil or 'mixed' law systems (with an example from 17th century Scot-land and another from early 20th century South Africa), 19th century France after codification, 15th century Germany with a glance at 13th and 14th century Spain-where the attempt is made each time to reach the correct decision by applying the mental process thought most appropriate. None of the approaches examined here is result-oriented, and to outsiders, especially to lawyers brought up in a different legal culture, the mental process seems …

The Mixed Courts Of Egypt: A Study Of The Use Of Natural Law And Equity, Gabriel M. Wilner

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The system of Mixed Courts in Egypt was an unusual institution. It represented an international solution in the context of what was obviously a colonial situation. The system lasted 74 years from 1876 to 1949. A system of law was established whose sources were general codes created especially for use by the Mixed Courts. The Charter of the Mixed Courts specified two residual sources of law. It is these sources and their application upon which this paper is principally focused. Article 34 reads: "The new Courts, in the exercise of their jurisdiction in civil and commercial matters, and within the …

Emptio, "Taking", Alan Watson

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According to Festus, "Emere, quod nunc est mer cari, antiqui acdpiebant pro sumere" and modern philologists do accept some such meaning as the original in Latin.)

The Thesaurus Linguae Latinae) however, thinks there is no certain example of this sense of emere and considers the instances adduced by Skutsch) to be scarcely convincing. I should like to produce for consideration a different instance drawn from the derivative emptio or emptor. The instance in question may not take us as far back as emere = sumere but will at least to emere = accipere.

Emptio, "Taking", Alan Watson

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According to Festus, "Emere, quod nunc est mer cari, antiqui acdpiebant pro sumere" and modern philologists do accept some such meaning as the original in Latin. The Thesaurus Linguae Latinae however, thinks there is no certain example of this sense of emere and considers the instances adduced by Skutsch to be scarcely convincing. I should like to produce for consideration a different instance drawn from the derivative emptio or emptor. The instance in question may not take us as far back as emere = sumere but will at least to emere = accipere. Roman legal tradition tells us that the …

The Rescripts Of The Emperor Probus (276-282 A.D.), Alan Watson

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In an earlier study, I examined the private law in the rescripts of Carus and his two sons, the Emperors who ruled from 282 to 284, immediately before the accession of Diocletian, and found as the main conclusion that, despite everything, the quality of legal decision had remained reasonably high. This paper considers the four rescripts that survive from the troubled reign of the preceding Emperor, Probus. None contains a great legal innovation; none shows a drastic lowering of legal standards. Their importance lies in what they reveal about general matters. Despite the enormous military and economic problems of the …

"Criminal Records"--A Comparative Approach, Sigmund A. Cohn

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There is in the United States a need to balance the interest of the public in the apprehension and conviction of criminals with that of individuals arrested but not convicted of any wrongdoing. As has been shown, some of the leading civil law countries have approached this goal in two ways: first, by not requiring an arrest in a great number of criminal cases and thus not furthering in the mind of the public the idea that arrest and criminal wrongdoing are identical, and second, by confining entries in criminal records, at least on principle, to final convictions of criminal …

Regulating Foreign-Based Institutions For Collective Investment: The German Statute, The American Experience, And The Oecd Standard Rules, Charles Baskervill Robson Jr.

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The purpose of this article is to provide a framework for the comparative and critical examination of the West German Statute Concerning the Distribution of Foreign Investment Shares and the Taxation of their Proceeds of 28 July 1969 and the OECD Standard Rules. The reference point for this framework is the United States Investment Company Act of 1940 which is not only the most pervasive of the regulatory schemes affective collective investment institutions but also undoubtedly the scheme most familiar to most readers. This article will identify a number of the areas in which the American experience with the Investment …

Judicial Recusation In The Fedearl Republic Of Germany, Sigmund A. Cohn

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The much debated problem of the qualification of judges has two aspects: First, the general qualification of an individual to be a judge and, second, his qualification to be a judge in a specific case. The second aspect, the qualification to be a judge in a specific case, has recently become the object of special attention. The problem has been stated with cogence and breadth by Mr. Justice Frankfurter. The breath of this state lies in the demand that the administration of justice should not only be disinterested in fact but should also reasonably appear to be so. The objective …

An Unprincipled Decision On A Will, Alan Watson

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In this article Professor Alan Watson reviews the decision of Alfenus from Ancient Rome (D.28.5.45 Alfenus 5 dig).