Law Commons^™

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

Perbandingan Penyelesaian Sengketa Lingkungan Hidup Melalui Mekanisme Gugatan Warga Negara (Citizen Lawsuit) Di Indonesia Dan Amerika Serikat, Listyalaras Nurmedina

"Dharmasisya” Jurnal Program Magister Hukum FHUI

A citizen lawsuit is a lawsuit filed by citizens against state officials that cause negligence and cause losses. This negligence is an act against the law (onrechtmatige overhead daad), where the state is ordered to improve its performance and issue a policy for general governing policies (regeling). It is intended to ensure that the negligence that previously occurred will not be repeated. A citizen lawsuit is almost similar to a class action lawsuit because it has the same thing, namely that the lawsuit is filed involving the interests of many people represented by one or more people. The difference is …

Offer And Acceptance In Jordanian Civil Law And Comparative Law: The Concept And Its Development

UAEU Law Journal

Islamic jurisprudence "fiqh" was the first legal system which adopted the doctrine of offer and acceptance. It is thought that the doctrine had been imported to French legal system from Islamic Fiqh through Spain and then transmitted to English law.

As we have seen, all the legal systems which have been studied are in common on the question of determination of offer and acceptance. This determination is based on a chronologically sequential order: the first expression of one party's will is an offer while the second corresponding expression of the other party's will is an acceptance. Nevertheless, all these systems …

A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner

James R Maxeiner

Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds …

Desvelando Los Intereses Ocultos: Neoliberalismo En La Nueva "Defensa Posesoria Extrajudicial", Joshimar De La Cruz Aroni

Joshimar De la cruz Aroni

Visión crítica de la Nueva Defensa Posesoria Extrajudicial

Responsabilidad Civil, Libertad De Procreación Y Derecho De Nacer Sano, Leysser L. Leon

Leysser L. León

El autor analiza críticamente la acaso primera sentencia de la administración de justicia peruana en un caso de responsabilidad civil por "wrongful life". En particular, ante la desestimación ligera de las pretensiones, se cuestiona la ausencia de un fundamento técnico frente a la temática de derechos de la personalidad, tutela resarcitoria y remedios contractuales vinculados con la controversia específica (demanda de resarcimiento formulada por una persona que padece osteogénesis imperfecta).

The Law Of Indicators On Women’S Human Rights: Unmet Promises And Global Challenges, Marta Infantino

Marta Infantino

Global indicators on human rights (HRs) aim to measure HRs scores against HRs standards. In other words, they aim to measure legal phenomena against legal benchmarks.

Despite HRs indicators’ reliance on legal knowledge, lawyers have so far neither made substantial contributions to their production, nor studied in depth the legal implications of their uses. The current state-of-the-art in the world of HRs indicators is the result of an ongoing process led by bureaucrats, economists, statisticians, and activists with limited legal training. It is these actors who are developing a new body of professional knowledge, and a new technology of governance …

De La Admiración A La Recepción Crítica: El Apagado Eco De La Codificación Del Derecho Privado Europeo En América Latina, Leysser L. Leon

Leysser L. León

En este artículo se esboza el nuevo posicionamiento de los ordenamientos jurídica de América Latina frente a los proyectos de armonización de las codificaciones civiles europeas. La tesis del Autor es que de una etapa dilatada de importación normativa masiva se ha pasado (y se necesita pasar) a una recepción crítica: con el auxilio de la comparación jurídica, se debe discriminar el material legislativo extranjero, conociéndolo en su origen e informándose sobre su problemática, a fin de evitar la migración de modelos inadecuados para fructificar fuera de su contexto de producción.

What Determines Professionals’ Bankruptcy Fees: An Empirical Investigation, Gijs Van Dijk, Martin Gramatikov

Martin Gramatikov

Countries have adopted different approaches to compensate bankruptcy trustees for winding up the estate. The approaches vary from state trustees to funding mechanisms where bankruptcy trustees receive a fixed fee, to a system where their fees depend on the size of the assets. Few studies have addressed the cost-effectiveness of the different approaches. This study contributes to this topic by examining the fees of the winding up, including an analysis of the determinants of these fees. After analyzing 289 Dutch bankruptcies consisting of short-term and medium-term cases, we find substantial differences in the mean hourly remuneration fees of bankruptcy trustees. …

The English Fox In The Louisiana Civil Law Chausse-Trappe: Civil Law Concepts In The English Language; Comparativists Beware!, Alain Levasseur, Vicenc Feliu

Vicenç Feliú

The Avant-Projet of the French Law Obligations and the French Law of Prescriptions, which we will cite as the Projet-Catala, is a monumental undertaking to modernize Parts III and IV of Book Three of the French Civil Code, “Obligations,” and to continue the work of Jean Carbonnier who demonstrated “in transfiguring the first Book” that it was possible to “rehabilitate” the Code of 1804 “without damaging its structure or form.” “The program mobilized thirty-four persons” under the sponsorship of the Association Henri Capitant and was presented in the form of a “Rapport à Monsieur le Garde des Sceaux” in September …

Common Law Vs. Civil Law: La Competencia Entre Ordenamientos Jurídicos, Leysser L. Leon

Leysser L. León

La importación de modelos jurídicos estadounidenses al ordenamiento peruano, afín por tradición a la familia del derecho civil, se viene consolidando, indolentemente y casi siempre de la mano con la dependencia económica, no sólo en particulares áreas del derecho (civil, comercial, bursátil, minero, ambiental, etc.), sino en la propia enseñanza universitaria y, no menos mecánicamente, en los proyectos de códigos de ética profesional para abogados. Urge, más que nunca, una comparación jurídica crítica que subraye y prevenga de los riesgos de la globalización del derecho para los países subdesarrollados.

Responsibilities Of Judges And Advocates In Civil And Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits, Geoffrey C. Hazard Jr., Angelo Dondi

All Faculty Scholarship

No abstract provided.

Two Valuable Treatises On Civil Procedure, Geoffrey C. Hazard Jr.

All Faculty Scholarship

No abstract provided.

Introduction To Comparative Legal Cultures: The Civil Law And The Common Law On Evidence And Judgment (Oral Presentation Of The Book By Antoine Garapon & Ioannis Papadopoulos, Juger En Amerique Et En France : Culture Judiciaire Française Et Common Law, Ioannis Papadopoulos

Cornell Law Faculty Working Papers

This book is the fruit of a basic idea, namely that comparative law is meaningless if it is regarded as the sole study of juxtaposed legal systems, regardless of their cultural dimension. The book’s main aim is to identify and analyze the basic cultural differences between the two great legal traditions of the West, the Continental and the Anglo-American one, through a thorough examination of the trial, and of judicial institutions more widely, as these are organized in France and the United States. For that purpose, after an introduction to the concept of legal culture and the basic notions of …

Jurisdictional Conflict And Jurisdictional Equilibration: Paths To A Via Media, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

The Foreign Notarial Legal Services Monopoly: Why Should We Care?, Pedro A. Malavet

Pedro A. Malavet

This piece serves three purposes: (1) briefly to take issue with the current treatment of comparative scholarship, especially how it is ignored by main law reviews; (2) to be a succinct introduction to the Latin Notary; and (3) to point out that the adversarial ethic and notarial impartiality can co-exist and even complement one another. It presents the notary as an example of a non-adversarial ethic, in a system that has other professionals who are ruled by the adversarial ethic. It does not advocate the abandonment of the adversarial ethic, but, rather, argues that in certain legal situations a non-adversarial …

The Non-Adversarial, Extra-Judicial Search For Legality And Truth: Foreign Notarial Transactions As An Inexpensive And Reliable Model For A Market-Driven System Of Informed Contracting And Fact-Determination, Pedro A. Malavet

Pedro A. Malavet

Notarial transactions are specialized contracts, which in most of the world are written and certified by a legal professional known as a notary, who obviously is not the U.S. notary public. These, in effect, lawyers, practice a liberal profession so endowed of the public trust that they are expressly made alternatives to judicial proceedings. Hence, the notarial form is an extra-judicial certification of legality and truth, often comparable to our court judgments. This system guarantees honesty and legality while avoiding or resolving disputes, at a very low cost, when compared to American law practice and certainly when compared to litigation.

Choice Of The Applicable Law In United States Maritime Law And The Venezuelan System, Daniel Eric Vielleville

LLM Theses and Essays

International maritime transport is an important means of transport in international trade. The vessels used in international maritime transport face unique dangers which necessitate maritime law that addresses the perils associated with maritime transport. Maritime law concerns many jurisdictions, which creates a special interest for the study of conflict of laws. There are private international maritime laws in addition to multilateral treaties. This paper analyzes the international approach that the United States takes in maritime conflict of laws, and compares it with the Venezuelan system of private international law. Venezuela is a civil law country with old maritime legislation which …

Counsel For The Situation: The Latin Notary, A Historical And Comparative Model, Pedro A. Malavet

Pedro A. Malavet

Can a lawyer, in certain matters, be an impartial counsel for the situation, rather than an advocate for either party? The Latin Notary is a legal professional of the Civil Law world that is expected to be a non-adversarial, expert legal counselor to every party to a transaction. The State seeks to ensure impartiality by imposing on the notary very strict training, admission and ethical requirements. In exchange for such high demands, the state often grants the notaries profitable subject-matter and geographic monopolies. Covers historical development, current definition and scope, relation to "lawyer as intermediary" of Model Rule 2.2.

The Warranty Of Quality In Sale Of Goods Under The Perspective Of The American And French Law, Renaud Baguenault De Puchesse

LLM Theses and Essays

While the United States’ common law system is characterized by diversity due to each state having its own set of rules, in certain areas there are nationwide legislative attempts of unification and standardization. One such attempt is the adoption of the Uniform Commercial Code which governs the sale of goods law in the United States. The French civil law system generally differs greatly from the American system in that it is primarily based upon statutes and codes. However, the American Uniform Commercial Code and the French Civil Code provide tangible, comparable bases to assess similarities and differences between American and …

A Comparative Analysis Of Civil Law Succession, George A. Pelletier Jr., Michael Roy Sonnenreich

Villanova Law Review

No abstract provided.

The Constitutional And Judicial Organization Of France And Germany And Some Comparisons Of The Civil Law And Common Law Systems, Joseph Dainow

Indiana Law Journal

This article is based on lectures delivered at the International Faculty of Comparative Law in Luxembourg, August 1960