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Full-Text Articles in Law

Private International Law As An Ethic Of Responsivity, Ralf Michaels Jan 2019

Private International Law As An Ethic Of Responsivity, Ralf Michaels

Faculty Scholarship

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our …


How Asian Should Asian Law Be? – An Outsider’S View, Ralf Michaels Jan 2018

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, …


Comparative Law And Private International Law, Ralf Michaels Jan 2016

Comparative Law And Private International Law, Ralf Michaels

Faculty Scholarship

No abstract provided.


Jurisdiction, Foundations, Ralf Michaels Jan 2016

Jurisdiction, Foundations, Ralf Michaels

Faculty Scholarship

No abstract provided.


The Conflicts Restatement And The World, Ralf Michaels Jan 2016

The Conflicts Restatement And The World, Ralf Michaels

Faculty Scholarship

No abstract provided.


Joseph Story, Ralf Michaels Jan 2016

Joseph Story, Ralf Michaels

Faculty Scholarship

Joseph Story (1779-1845) was one of the greatest and most influential American lawyers of all time. Both as a Supreme Court Justice and as a professor at Harvard Law School, his work and thought were, and still are, of great importance. Today’s private international law would look different without him, both in the United States and in the rest of the world. At the same time, his approach to the field cannot be properly understood unless placed within his broader work on law, and the specific American background against which it was developed.


Wächter, Carl Georg Von, Ralf Michaels Jan 2016

Wächter, Carl Georg Von, Ralf Michaels

Faculty Scholarship

Carl Georg von Wächter (1797-1880) was once considered 'one of the greatest German jurists of all times’, but was all but forgotten in the 20th century, despite an excellent dissertation on his work in private international law by Nikolaus Sandmann. In private international law, he is known mainly for his critique of earlier theories, in particular the theory of statutes. Positively, Wächter is mainly (and not accurately) known as a proponent of a strong preference for the lex fori and as such mainly presented in opposition to Friedrich Carl von Savigny’s theory (Savigny, Friedrich Carl von). Only recently has there …


Non-State Law In The Hague Principles On Choice Of Law In International Contracts, Ralf Michaels Jan 2014

Non-State Law In The Hague Principles On Choice Of Law In International Contracts, Ralf Michaels

Faculty Scholarship

Article 3 of the Hague Principles on Choice of Law in International Contracts is the first quasi-legislative text on choice of law to allow explicitly for the choice of non-state law also before state courts. This paper, forthcoming in a Festschrift, puts the provision into a broader context, discusses their drafting history and particular issues involved in their interpretation. It also provides a critical evaluation. Article 3 does not respond to an existing need, and its formulation, the fruit of a compromise between supporters and opponents of choosing non-state law, makes the provision unsuccessful for state courts and arbitrators alike.


Globalization And Law: Law Beyond The State, Ralf Michaels Jan 2013

Globalization And Law: Law Beyond The State, Ralf Michaels

Faculty Scholarship

The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished—globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state—territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need …


Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum Jan 2012

Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum

Faculty Scholarship

No abstract provided.


Global Problems In Domestic Courts, Ralf Michaels Jan 2011

Global Problems In Domestic Courts, Ralf Michaels

Faculty Scholarship

We face an increasing number of problems that are essentially global in nature because they affect the world in its entirety: global cartels, climate change, crimes against humanity; to name a few. These problems require world courts, yet world courts in the institutional sense are largely lacking. Hence, domestic courts must function, effectively, as world courts. Given the unlikelihood of effective world courts in the future, our challenge is to establish under what conditions domestic courts can play this role of world courts effectively and legitimately.


Sonia, What’S A Nice Person Like You Doing In Company Like That, Thomas D. Rowe Jr. Dec 2010

Sonia, What’S A Nice Person Like You Doing In Company Like That, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.


Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin Jan 2010

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …


Enforcing International Corrupt Practices Law, Paul D. Carrington Jan 2010

Enforcing International Corrupt Practices Law, Paul D. Carrington

Faculty Scholarship

This Essay strives to advance the current international movement to
deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in “developing” nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.


After The Revolution – Decline And Return Of U.S. Conflicts Of Laws, Ralf Michaels Jan 2009

After The Revolution – Decline And Return Of U.S. Conflicts Of Laws, Ralf Michaels

Faculty Scholarship

Scholars in the US have become uninterested in conflict of laws, at least in the core issues that spurred the conflict of laws revolution, especially questions of method and areas of tort and contract law. Proposals for a new (third) Restatement have not yet led very far. By contrast, new interest comes from the fringes: special political questions and interdisciplinarity. As to the first, I use the example of same‑sex marriages to discuss the extent to which discussions about politics are inseparably linked with discussions over conflict of laws. Conflict of laws is here not a mere additional field in …


The Many Lives — And Faces — Of Lex Mercatoria: History As Genealogy In International Business Law, Nikitas E. Hatzimihail Jul 2008

The Many Lives — And Faces — Of Lex Mercatoria: History As Genealogy In International Business Law, Nikitas E. Hatzimihail

Law and Contemporary Problems

It has been claimed that cross-border business transactions are governed by a transnational body of norms specific to international trade, generally known as lex mercatoria, the law merchant. This legal phenomenon is in fact often described as the new lex mercatoria, as distinguished from the ancient law merchant, which purportedly flourished in medieval and early modern Europe. Here, Hatzimihail discusses about lex mercatoria, which has been variously described by its advocates as a set of general principles and customary rules spontaneously referred to or elaborated in the framework of international trade.


Subjects Of Sovereignty: Indigeneity, The Revenue Rule, And Juridics Of Failed Consent, Audra Simpson Jul 2008

Subjects Of Sovereignty: Indigeneity, The Revenue Rule, And Juridics Of Failed Consent, Audra Simpson

Law and Contemporary Problems

Simpson examines the way in which indigeneity and sovereignty have been conflated with savagery, lawlessness, and smuggling in recent history. The national problem of indigenous smuggling is reconstructed here as it was portrayed in the public eye, largely via the media, and then through conflict-of-laws cases concerning the interpretation and application of the revenue rule. Simpson further discusses economic activities that express indigenous cultural and historical practice and that reflect a larger set of socio-economic conditions.


The Transformation Of International Comity, Joel R. Paul Jul 2008

The Transformation Of International Comity, Joel R. Paul

Law and Contemporary Problems

No abstract provided.


Tales, Techs And Territories: Private International Law, Globalization, And The Legal Construction Of Borderlessness On The Internet, Andrea Slane Jul 2008

Tales, Techs And Territories: Private International Law, Globalization, And The Legal Construction Of Borderlessness On The Internet, Andrea Slane

Law and Contemporary Problems

The Internet has often been described as "borderless," owing to the technical features of Internet communications that make content accessible to anyone with a network connection, regardless of his or her location. This borderlessness has been widely thought both to confound legal regimes relying on territoriality and to fundamentally create a crisis for jurisdictional determination of both public- and private-law matters. Here, Slane dissects the images of globalization at work in conflicts cases involving harms caused by postings on the Internet and demonstrates how these images work to produce a coherence for the field of conflicts as well as the …


Cultural Conflicts, Annelise Riles Jul 2008

Cultural Conflicts, Annelise Riles

Law and Contemporary Problems

Riles show how contemporary anthropological insights into the character of cultural difference and cultural fragmentation can reframe conflict-of-laws analysis in productive ways. Taking up the example of the treatment of Native American sovereignty in US courts, she argues that a theory of conflict of laws as a discipline devoted to addressing the problem of cultural conflict is more doctrinally illuminating than the mainstream view of conflict of laws as political conflict. Riles suggests that the general dissatisfaction with conflicts as a field in the United States, and its failure to live up to tits larger promise, may stem in part …


Betwixt And Between Recognition: Migrating Same-Sex Marriages And The Turn Toward The Private, Brenda Cossman Jul 2008

Betwixt And Between Recognition: Migrating Same-Sex Marriages And The Turn Toward The Private, Brenda Cossman

Law and Contemporary Problems

Cossman talks about the battery of arguments at work in doctrinal debates about the recognition of gay and lesbian marriages alongside other images of these migrating marriages in television and film and in wedding announcements in the New York Times. At a most basic level, this cultural analysis reminds people that doctrinal efforts to abstract from the substance of disputes aside, substance and, in particular, cultural and political context continue to matter in ways that are often both crucial and unappreciated in the discipline. Moreover, she shows how the intricate moves of recognition and deference that characterize technical doctrinal maneuvering …


The Interlegality Of Transnational Private Law, Robert Wai Jul 2008

The Interlegality Of Transnational Private Law, Robert Wai

Law and Contemporary Problems

No abstract provided.


Afterword, Marianne Constable Jul 2008

Afterword, Marianne Constable

Law and Contemporary Problems

No abstract provided.


Citizenship, Public And Private, Karen Knop Jul 2008

Citizenship, Public And Private, Karen Knop

Law and Contemporary Problems

Knop develops private international law as the private side of citizenship. She shows that although individuals think of citizenship as public, private international law covers some of the same ground. Private international law also harks back to a historical conception of the legal citizen as someone who could sue and be sued, and someone who belonged to a community of shared or common law that was not necessarily a territorial community. She demonstrates that Anglo-Canadian private international law has particular value as private citizenship in a post-9/11 world because its treatment of enemy aliens, illegal immigrants, and members of religious …


The Reach Of Rights: “The Foreign” And “The Private” In Conflict-Of-Laws, State-Action, And Fundamental-Rights Cases With Foreign Elements, Jacco Bomhoff Jul 2008

The Reach Of Rights: “The Foreign” And “The Private” In Conflict-Of-Laws, State-Action, And Fundamental-Rights Cases With Foreign Elements, Jacco Bomhoff

Law and Contemporary Problems

No abstract provided.


Economics Of Law As Choice Of Law, Ralf Michaels Jul 2008

Economics Of Law As Choice Of Law, Ralf Michaels

Law and Contemporary Problems

No abstract provided.


The Public-Private Distinction In The Conflict Of Laws, William S. Dodge Apr 2008

The Public-Private Distinction In The Conflict Of Laws, William S. Dodge

Duke Journal of Comparative & International Law

No abstract provided.


Custom And Its Revival In Transnational Private Law, J. H. Dalhuisen Apr 2008

Custom And Its Revival In Transnational Private Law, J. H. Dalhuisen

Duke Journal of Comparative & International Law

No abstract provided.


Medical Malpractice Overseas: The Legal Uncertainty Surrounding Medical Tourism, Philip Mirrer-Singer Apr 2007

Medical Malpractice Overseas: The Legal Uncertainty Surrounding Medical Tourism, Philip Mirrer-Singer

Law and Contemporary Problems

Mirrer-Singer explores some of the legal uncertainty surrounding medical tourism specifically in ways medical tourists can seek relief in US courts for malpractice committed abroad and explains why courts probably lack jurisdiction over foreign physicians who have allegedly committed malpractice. Among other things, he discusses theories under which US firms in the medical-tourism business could be held liable for the foreign provider's negligence.


The Federal Judicial Power And The International Legal Order, Curtis A. Bradley Jan 2007

The Federal Judicial Power And The International Legal Order, Curtis A. Bradley

Faculty Scholarship

No abstract provided.