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Full-Text Articles in Law

Introduction: Situating, Researching, And Writing Comparative Legal History, John G. H. Hudson, William Eves Jan 2021

Introduction: Situating, Researching, And Writing Comparative Legal History, John G. H. Hudson, William Eves

Other Publications

This volume is a selection of essays taken from the excellent range of papers presented at the British Legal History Conference hosted by the Institute for Legal and Constitutional Research at the University of St Andrews, 10–13 July 2019. The theme of the conference gives this book its title: ‘comparative legal history’. The topic came easily to the organisers because of their association with the St Andrews-based European Research Council Advanced grant project ‘Civil law, common law, customary law: consonance, divergence and transformation in Western Europe from the late eleventh to the thirteenth centuries’. But the chosen topic was also …


Lost In Transplantation: Modern Principles Of Secured Transactions Law As Legal Transplants, Charles W. Mooney Jr. Apr 2020

Lost In Transplantation: Modern Principles Of Secured Transactions Law As Legal Transplants, Charles W. Mooney Jr.

All Faculty Scholarship

This manuscript will appear as a chapter in a forthcoming edited volume published by Hart Publishing, Secured Transactions Law in Asia: Principles, Perspectives and Reform (Louise Gullifer & Dora Neo eds., forthcoming 2020). It focuses on a set of principles (Modern Principles) that secured transactions law for personal property should follow. These Modern Principles are based on UCC Article 9 and its many progeny, including the UNCITRAL Model Law on Secured Transactions. The chapter situates the Modern principles in the context of the transplantation of law from one legal system to another. It draws in particular on Alan Watson’s pathbreaking …


Copyright In The Texts Of The Law: Historical Perspectives, Charles Duan Apr 2020

Copyright In The Texts Of The Law: Historical Perspectives, Charles Duan

Articles in Law Reviews & Other Academic Journals

Recently, state governments have begun to claim a copyright interest in their official published codes of law, in particular arguing that ancillary materials such as annotations to the statutory text are subject to state-held copyright protection because those materials are not binding commands that carry the force of law. Litigation over this issue and a vigorous policy debate are ongoing.

This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law …


The Patriation Of Canadian Corporate Law, Camden Hutchison Jan 2020

The Patriation Of Canadian Corporate Law, Camden Hutchison

All Faculty Publications

Canadian corporate law belongs within a broader Anglo-American legal tradition, sharing many of the features of other common law jurisdictions, most notably England and the United States. Prior to Confederation, Canadian corporate law first emerged from nineteenth-century English legislation and continued to resemble English law – at least superficially – well into the twentieth century. Legislation is only one source of corporate law, however. Just as important is the creation of legal rules through the common law adjudicatory process. Thus, examining case law raises an important empirical question distinct from, though relevant to, the issue of legislative influence – namely, …


The Chicago School’S Limited Influence On International Antitrust, Anu Bradford, Adam S. Chilton, Filippo Maria Lancieri Jan 2020

The Chicago School’S Limited Influence On International Antitrust, Anu Bradford, Adam S. Chilton, Filippo Maria Lancieri

Faculty Scholarship

Beginning in the 1950s, a group of scholars primarily associated with the University of Chicago began to challenge many of the fundamental tenants of antitrust law. This movement, which became known as the Chicago School of Antitrust Analysis, profoundly altered the course of American antitrust scholarship, regulation, and enforcement. What is not known, however, is the degree to which Chicago School ideas influenced the antitrust regimes of other countries. By leveraging new datasets on antitrust laws and enforcement around the world, we empirically explore whether ideas embraced by the Chicago School diffused internationally. Our analysis illustrates that many ideas explicitly …


Why Didn't The Common Law Follow The Flag?, Christian Burset Aug 2019

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 …


Why Didn't The Common Law Follow The Flag?, Christian Burset May 2019

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 …


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 Jan 2019

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 …


A Research Agenda For The History Of Property Law In Europe, Inspired By And Dedicated To Marc Poirier, Anna Di Robilant Jan 2017

A Research Agenda For The History Of Property Law In Europe, Inspired By And Dedicated To Marc Poirier, Anna Di Robilant

Faculty Scholarship

Proposes the following research agenda: (a) understanding the relation between property and long-term economic change by focusing on the relation between property law and what historians call "social property" relations; (b) understanding property concepts and ideas in the context of the larger ideological and philosophical ideas that shaped the immediate world of jurists and property lawyers; (c) looking beyond the single, contingent episodes of the history of property law and identifying longterm patterns and regularities in the way jurists conceptualized property; and (d) understanding European property culture in its many entanglements with the non-European world.


From Rome To The Restatement: S.P. Scott, Fred Blume, Clyde Pharr, And Roman Law In Early Twentieth Century America, Timothy G. Kearley Feb 2016

From Rome To The Restatement: S.P. Scott, Fred Blume, Clyde Pharr, And Roman Law In Early Twentieth Century America, Timothy G. Kearley

Timothy G. Kearley

This article describes how the classical past, including Roman law and a classics-based education, influenced elite legal culture in the United States and university-educated Americans into the twentieth century and helped to encourage Scott, Blume, and Pharr to labor for many years on their English translations of ancient Roman law. 


Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow Feb 2016

Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow

M. C. Mirow

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …


Two Comparative Perspectives On Copyright's Past And Future In The Digital Age, Timothy K. Armstrong Jan 2016

Two Comparative Perspectives On Copyright's Past And Future In The Digital Age, Timothy K. Armstrong

Faculty Articles and Other Publications

A review of two recent scholarly books on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014), and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014). Both books are meticulously researched and carefully written, and each makes an excellent addition to the literature on copyright. Contrasting both titles in this joint review, however, helps to reveal a few respects in which each work is incomplete; indeed, at times each book reads as a critique of the other.

Baldwin's The Copyright Wars argues that modern debates over …


Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger Jan 2016

Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger

Faculty Scholarship

What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.

In opposition to my claims about American law, Paul Craig lobs three critiques from across the …


Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong May 2015

Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong

Faculty Publications

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …


A War For Liberty: On The Law Of Conscientious Objection, Jeremy K. Kessler Jan 2015

A War For Liberty: On The Law Of Conscientious Objection, Jeremy K. Kessler

Faculty Scholarship

One common understanding of the Second World War is that it was a contest between liberty and tyranny. For many at the time – and for still more today – ‘liberty’ meant the rule of law: government constrained by principle, procedure, and most of all, individual rights. For those states that claimed to represent this rule-of-law tradition, total war presented enormous challenges, even outright contradictions. How would these states manage to square the governmental imperatives of military emergency with the legal protections and procedures essential to preserving the ancient ‘liberty of the subject’? This question could be and was asked …


Foreword: Transdisciplinary Conflicts Of Law, Ralf Michaels, Karen Knop, Annelise Riles Dec 2014

Foreword: Transdisciplinary Conflicts Of Law, Ralf Michaels, Karen Knop, Annelise Riles

Annelise Riles

This introduction to our co-edited special issue of Law and Contemporary Problems addresses how interdisciplinary studies might contribute to the revitalization of the field of Conflict of Laws. The introduction surveys existing approaches to interdisciplinarity in conflict of laws - drawn primarily from economics, political science, anthropology and sociology. It argues that most of these interdisciplinary efforts have remained internal to the law, relating conflicts to other legal spheres and issue areas. It summarizes some of the contributions of these projects but also outlines the ways they fall short of the full promise of interdisciplinary work in Conflicts scholarship, and …


Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp Nov 2014

Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp

All Faculty Scholarship

One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them.

Intellectual history in the United States went into decline because …


Rabban's Law's History, Herbert J. Hovenkamp Mar 2013

Rabban's Law's History, Herbert J. Hovenkamp

All Faculty Scholarship

This is a brief review of David Rabban's new book: Law's History: American Legal Thought and the Transatlantic Turn to History (Cambridge, 2013).


Why Do Europeans Ban Hate Speech? A Debate Between Karl Loewenstein And Robert Post, Robert Kahn Feb 2013

Why Do Europeans Ban Hate Speech? A Debate Between Karl Loewenstein And Robert Post, Robert Kahn

Robert Kahn

European countries restrict hate speech, the United States does not. This much is clear. What explains this difference? Too often the current discussion falls back on a culturally rich but normatively vacant exceptionalism (American or otherwise) or a normatively driven convergence perspective that fails to address historical, cultural and experiential differences that distinguish countries and legal systems. Inspired by the development discourse of historical sociology, this article seeks to record instances where Americans or Europeans have argued their approach to hate speech laws was more “advanced” or “modern.”

To that end this article focuses on two authors whose writing appears …


Transformation Of Trust Ideas In Japan: Drafting Of The Trust Act 1922, Masayuki Tamaruya Jan 2013

Transformation Of Trust Ideas In Japan: Drafting Of The Trust Act 1922, Masayuki Tamaruya

Masayuki Tamaruya

No abstract provided.


American Influence On Israeli Law: Freedom Of Expression, Pnina Lahav Mar 2012

American Influence On Israeli Law: Freedom Of Expression, Pnina Lahav

Faculty Scholarship

This chapter provides a historical overview of the American influence on Israel’s jurisprudence of freedom of expression from the 1950s to the first decade of the twenty first century. The chapter uses the format of decades, presenting representative cases for each decade, to record the process by which Israeli judges incorporated and sometimes rejected themes from the U.S. jurisprudence of freedom of expression. In the course of discussing the jurisprudential themes the chapter also highlights the historical context in which the cases were decided, from the war in Korea and McCarthyism in the 1950s, to the process of globalization which …


Private Rights Or Public Wrongs? The Crime Victims Rights Act Of 2004 In Historical Context, Christopher J. Truxler Jan 2012

Private Rights Or Public Wrongs? The Crime Victims Rights Act Of 2004 In Historical Context, Christopher J. Truxler

Christopher J. Truxler

Historically, crime victims served as policemen, investigators, and private prosecutors, and were regarded as law enforcement’s most dependable catalyst. The Crime Victim’s Rights Act of 2004 grants crime victims eight substantive and procedural rights and breathes new life into the common law idea that crime is both a public wrong and a private injury. The Act has, however, elicited ardent criticism. Opponents contend that the Act is both bad policy and, most likely, unconstitutional. Without commenting on the Act’s policy or constitutionality, this Note places the Crime Victims’ Rights Act within a broader historical context where victims’ needs can be …


The Importance Of Comparative Law In Legal Education: United States Goals And Methods Of Legal Comparisons, Hugh J. Ault, Mary Ann Glendon Dec 2011

The Importance Of Comparative Law In Legal Education: United States Goals And Methods Of Legal Comparisons, Hugh J. Ault, Mary Ann Glendon

Hugh J. Ault

This Essay discusses the gradual changes occurring within legal education, which are finding wide acceptance in law schools throughout the United States. These changes include greater attention to other disciplines, primarily economics and behavioral sciences, and the contributions they make to a fuller understanding of the legal system. In addition, law schools are increasingly exploring the ways in which the law in textbooks may differ from the law in action. Nearly every law school, therefore, is seriously investigating the social and economic background of legal rules and their consequences through clinical legal education, which attempts to provide a real or …


Heirs Of Martí: The Story Of Cuban Lawyers, Victoria Quintana Apr 2010

Heirs Of Martí: The Story Of Cuban Lawyers, Victoria Quintana

University of Miami International and Comparative Law Review

No abstract provided.


Is Tax Law Culturally Specific? Lessons From The History Of Income Tax Law In Mandatory Palestine, Assaf Likhovski Jan 2010

Is Tax Law Culturally Specific? Lessons From The History Of Income Tax Law In Mandatory Palestine, Assaf Likhovski

Assaf Likhovski

Tax law is a technical area of law which does not seem to be culturally specific. It is thus seen as easily transferable between different societies and cultures. However, tax law is also based on definitions and notions which are not universal (the private sphere, the family, the gift etc.). So, is tax law universal or particular? Is it indeed easily transferable between different societies? And in what ways does tax law reflect ethnic or cultural rather than economic differences? This Article seeks to answer these questions by analyzing one specific example — the history of income tax legislation in …


The Great Pharmaceutical Patent Robbery, And The Curious Case Of The Chemical Foundation, Christopher Wadlow Jan 2010

The Great Pharmaceutical Patent Robbery, And The Curious Case Of The Chemical Foundation, Christopher Wadlow

Christopher Wadlow

In 1918, the United States confiscated virtually all German-owned intellectual property assets within its jurisdiction. Out of 6,000 patents in the chemical field, 4,500 were assigned for a very modest consideration to an newly-established entity, the Chemical Foundation, which was incorporated with the objective of licensing and managing them for the benefit of the United States chemical industry. This article describes the origins and activities of the Chemical Foundation, and considers whether it provides a useful model, or at least useful lessons, for the collective management of patents today.


The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, Mark J. Sundahl Jan 2009

The Living Constitution Of Ancient Athens: A Comparative Perspective On The Originalism Debate, Mark J. Sundahl

Law Faculty Articles and Essays

This article provides a fresh perspective on the originalism debate by undertaking a comparative study of constitutional interpretation in the United States and ancient Athens. By observing how the ancient Athenians resolved the same interpretational problems that face the Supreme Court today, we are able to gain a better understanding of the issues that drive the originalism debate. The study focuses on Athenian practice in 350 B.C., which falls late in the history of the Athenian democracy, well after the legal system had achieved its final form. Like the United States, Athens had a strong tradition of judicial review and …


International News V Associated Press: A Theme And Variations Over Four Days, Christopher Wadlow Dec 2008

International News V Associated Press: A Theme And Variations Over Four Days, Christopher Wadlow

Christopher Wadlow

A series of four classes at the University of Trier (Germany) for undergraduate law students, using the International News v Associated Press case 248 U.S. 215 (1918) to discuss some principles of unfair competition and copyright law, as well as some more fundamental doctrines from the common law, and American Constitutional law.


Binding The Dogs Of War: Japan And The Constitutionalizing Of Jus Ad Bellum, Craig Martin Nov 2008

Binding The Dogs Of War: Japan And The Constitutionalizing Of Jus Ad Bellum, Craig Martin

Craig Martin

There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest that constitutional design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance …


Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow Jan 2007

Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow

Faculty Publications

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …