Civil Law Commons^™

Introduction: 2008 Aba Section Of Litigation Access To Justice Symposium, Robert L. Rothman

Fordham Urban Law Journal

The 2008 ABA Section of Litigation conducted a symposium designed to explore the challenges inherent in creation of a civil right to counsel and to generate critical though, dialogue, and scholarship on the subject.

Representation In Mediation: What We Know From Empirical Research, Roselle L. Wissler

Fordham Urban Law Journal

This Article first describes the proportion of unrepresented parties in mediation and the policies and practices regarding representation in different mediation contexts. The core of the Article examines the empirical findings on the effect of representation on several dimensions of the mediation process, including the effect on preparation for mediation, party perceptions of the fairness of the process and pressures to settle, the extent of party "voice" and participation in mediation, and the tone of the session. In addition, the Article examines the effect of representation on mediation outcomes, including the likelihood of settlement and the fairness of agreements reached. …

The Shadow Of State Secrets, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The shadow of state secrets casts itself longer than previously acknowledged. Between 2001 and 2009 the government asserted state secrets in more than 100 cases, while in scores more litigants appealed to the doctrine in anticipation of government intervention. Contractor cases ranged from breach of contract, patent disputes, and trade secrets, to fraud and employment termination. Wrongful death, personal injury, and negligence suits kept pace, extending beyond product liability to include infrastructure and services, as well as conduct of war. In excess of fifty telecommunications suits linked to the NSA warrantless wiretapping program emerged 2006-2009, with the government acting, variously, …

Imagining Judges That Apply Law: How They Might Do It, James Maxeiner

All Faculty Scholarship

"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a simple-minded demand that is silly and misleading. A glance beyond our shores dispels the notion that the American public is naive to expect judges to apply rather than to make law.

American obsession with judicial lawmaking has its price: indifference to judicial law applying. If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts …

The Witness Who Saw, He Left Little Doubt: A Comparative Consideration Of Expert Testimony In Mental Disability Law Cases, Michael L. Perlin, Astrid Birgden, Kris Gledhill

Articles & Chapters

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (‘cherry picking’ evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The …

The Reluctant Comparativist: Teaching Common Law Reasoning To Civil Law Students And The Future Of Comparative Legal Skills Back To The Future?, Helena Whalen-Bridge

Journal of Legal Education

No abstract provided.

International Law's Mixed Heritage: A Common/Civil Law Jurisdiction, Colin B. Picker

Vanderbilt Journal of Transnational Law

This Article provides the first application of the emerging mixed jurisdiction jurisprudence to a comparative analysis of international law. Such a comparative law analysis is important today as the growth and increasing vitality of international juridical, administrative and legislative institutions is placing demands on international law not previously experienced. International law is unsure where to look for help in coping with these new stresses. In significant part this isolation can be attributed to a general view among international law scholars that international law is sui generis, and hence there is little to be gained from national legal systems. This Article …

Justifying An Analysis Of The Ecclesiological Development Of Subsidiarity Via Civil And Common Law Jurisprudential Epistemology, William Pieratt Demond

Seton Hall University Dissertations and Theses (ETDs)

This article seeks to justify an examination of subsidiarity's development within Catholicism. Due to the fact that the European Union ["EU"] codified subsidiarity via the Treaty of Maastricht, subsidiarity is now a part of EU law. Although seemingly intended to resolve questions concerning the proper allocation of powers, its codification has generated substantial debate concerning the proper meaning(s) (if any) and/or application(s) of subsidiarity within the EU. Due to the facts that 1) the EU's legal traditions are heavily influenced by both the civil and common law traditions, 2) both of these traditions advocate the use of established jurisprudential methodologies …

Multi-Tiered Marriage: Ideas And Influences From New York And Louisiana To The International Community, Joel A. Nichols

Vanderbilt Journal of Transnational Law

This Article contends that society in the United States needs to hold a genuine discussion about alternatives to current conceptions of marriage and family law jurisdiction. Specifically, the Article suggests that the civil government should consider ceding some of its jurisdictional authority over marriage and divorce law to religious communities that are competent and capable of adjudicating the marital rites and rights of their respective adherents. There is historical precedent and preliminary movement toward this end--both within and without the United States--which might serve as the framework for further discussions. Within the United States, the relatively new covenant marriage statutes …

Examining A Comparative Law Myth: Two Hundred Years Of Riparian Misconception, Andrea B. Carroll

Journal Articles

This article is a first step in an effort to critically examine - and to debunk - some of the myths that persist about the degree to which the common and civil law systems differ. Specifically, the article questions the validity of recent scholarly commentary suggesting that the primary differences between the systems can be found in their substantive legal rules or in their respective "spirits." A relatively narrow issue of riparian access perfectly highlights the problem. Nearly all of the high courts in the United States that have examined this particular riparian issue have chosen to adopt either the …

Clearing Away The Mist: Suggestions For Developing A Principled Veil Piercing Doctrine In China, Bradley C. Reed

Vanderbilt Journal of Transnational Law

It was less than thirty years ago that China stood economically isolated from the rest of the world. Times have certainly changed. Today China's economy is one of the fastest growing in the world, and Western businesses are inundating the country to access the abundance of cheap labor. Corporate activity is progressing, yet it was only twelve years ago that China enacted its first corporate law which officially recognized the concept of limited liability. And it was not until less than a year ago that China recognized one of the most important (and most often litigated) corporate law doctrines: piercing …

Citizen Standing To Enforce Anti-Cruelty Laws By Obtaining Injunctions: The North Carolina Experience, William A. Reppy Jr.

Animal Law Review

North Carolina law authorizes citizen standing for the enforcement of anti-cruelty laws, thus supplementing criminal prosecution by means not used in any other state. Citizens, cities, counties, and animal welfare organizations can enforce animal cruelty laws through a civil injunction. This article explores the various amendments to North Carolina’s civil enforcement legislation and the present law’s strengths and weaknesses. The Author suggests an ideal model anti-cruelty civil remedies statute.

Fairness And Welfare From A Comparative Law Perspective, Horacio Spector

Chicago-Kent Law Review

This Article discusses the relative value of law and economics and moral philosophy to explain private law in both common law and civil law jurisdictions. It argues that the recent philosophical paradigm, which revolves around the ideas of fairness and autonomy, is intellectually continuous with the School of Rationalist Natural Law. Though this School has been directly influential on the development of civilian private law, its ascendancy on common law cannot be documented. Paradoxically, recent philosophical explanations of private law bear on common law, while legal philosophers in civil law jurisdictions still follow Kelsen's research agenda, which focuses on the …

Leaving Money On The Table: Contract Practice In A Low-Trust Environment, Ruben Kraiem

ExpressO

Social capital – the level of trust inherent in a society – will affect the contracting practices that are considered standard, practical or fair. These practices in turn will help determine the parties’ positions as they approach their negotiation, how they will communicate, and what terms they will agree in any particular transaction. This is true not only for the small transaction, but also for large and complex deals. As a result, when operating in a low-trust environment, even sophisticated parties (who can bear the costs of tailoring an agreement to their particular case), will be prone to relinquish or …

The Advantages Of The Civil Law Judicial Design As The Model For Emerging Legal Systems, Charles H. Koch, Jr

Indiana Journal of Global Legal Studies

Globalization, Courts, and Judicial Power Symposium

The French Experience With Duty To Rescue: A Dubious Case For Criminal Enforcement, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

A Comparison Of New Zealand Taxpayers' Rights With Selected Civil Law And Common Law Countries, Adrian J. Sawyer

Vanderbilt Journal of Transnational Law

This article seeks to ascertain the breadth of rights that taxpayers enjoy in New Zealand in comparison with their counterparts in a number of common law and civil law jurisdictions. Such a comparison enables the wealth of experience that codification of rights in civil law countries can provide in comparison to the traditionally lower reliance on statutory protection in common law jurisdictions. From this comparative analysis common themes are distilled, as well as differences between New Zealand and various civil law and common law nations with respect to the legal position and state of taxpayers' rights. The author mounts a …

The Civil Law Trust, Maurizio Lupoi

Vanderbilt Journal of Transnational Law

It is generally held that trusts are incompatible with the basic assumptions of civil law systems. In order to discuss this statement one would have to inquire, first, what is meant by the term "trusts"; second, what assumed common characteristics of the civil law systems are being envisaged and declared to bein compatible with trusts; and third, why those characteristics should be incompatible with trusts. It is also commonly held that the Hague Convention of 1984 on the law applicable to and the recognition of trusts concerns only those trusts that are foreign to the jurisdiction in which the rules …

International Recognition And Adaptation Of Trusts: The Influence Of The Hague Convention, Adair Dyere

Vanderbilt Journal of Transnational Law

The process of bringing English-style trusts into systems that do not have a similar device is fraught with difficulties. This is especially true with respect to efforts directed towards the creation of a domestic trust law within such a system, but it is also true about the adaptation of legal institutions that is necessary in order to recognize trusts created under foreign law, in accordance with Article 11 of the Hague Trusts Convention. Thus far, it can be said that no country that did not have trusts before the Hague Trusts Convention has reacted to the Convention by adopting a …

Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David V. Snyder

Articles by Maurer Faculty

No abstract provided.

The Effect Of Lifting The Blindfold From Civil Juries Charged With Apportioning Damages In Modified Comparative Fault Cases: An Empirical Study Of The Alternatives, Jordan H. Leibman, Robert B. Bennett, Richard Fetter

Scholarship and Professional Work - Business

Focuses on a study on the effect of lifting the blindfold from civil juries charged with apportioning damages in modified comparative fault cases. Historical background on comparative fault in the United States; Origin of blindfolding; Comparison of blindfold modified comparative fault verdicts with sunshine verdicts; Conclusions.

Religious Law And Civil Law: Using Secular Law To Assure Observance Of Practices With Religious Significance, Kent Greenawalt

Faculty Scholarship

Civil law in the United States rarely helps to enforce religious standards or demands that people perform actions whose significance relates to religious obligations. Yet, some American states do have such involvement with certain observances of Orthodox and Conservative Judaism. Many states enforce kosher requirements, to which Orthodox and some Conservative Jews adhere. The laws, which penalize fraud in the labeling of products as kosher, serve the secular interest in preventing deception of consumers. However, the laws also force the state to decide when religious regulations have been violated.

Orthodox and Conservative Jewish divorces raise a second kind of involvement. …

Justice Scalia As A Modern Lord Devlin: Animus And Civil Burdens In Romer V. Evans, S. I. Strong

Faculty Publications

In the late 1950s and early 1960s, the legal world was captivated by an ongoing debate between two of England's most respected jurists regarding whether and to what extent morality should be reflected in the law. The debate was instigated by the publication of the Wolfenden Report, a study presented to Parliament as it considered whether to repeal certain antisodomy laws in Great Britain. Lord Patrick Devlin, then a Lord of Appeal in Ordinary and later elevated to the House of Lords, Britain's highest court, opposed the conclusions contained in the Wolfenden Report and supported the continuation of the antisodomy …

Ex Post Facto Laws: Supreme Court New York County People V. Griffin (Decided December 5, 1996

Touro Law Review

No abstract provided.

The O.J. Inquisition: A United States Encounter With Continental Criminal Justice, Myron Moskovitz

Vanderbilt Journal of Transnational Law

October 3, 1995 marked the end of the O.J. Simpson double murder trial, which lasted 474 days and was billed "the trial of the century." After less than four hours of deliberation, the jury acquitted Mr. Simpson of all charges. The following article is a dramatization of how a case similar to the Simpson trial might be handled by a civil-law European criminal justice system.

Utilizing an unusual format, Professor Myron Moskovitz examines and illustrates the differences between the United States and civil-law European criminal justice systems. The author uses a play script inspired by the events in the trial …

Paradigms Lost: The Blurring Of The Criminal And Civil Law Models – And What Can Be Done About It, John C. Coffee Jr.

Faculty Scholarship

Ken Mann's professed goal is to "shrink" the criminal law. To realize this worthy end, he advocates punitive civil sanctions that would largely parallel criminal sanctions, thereby reducing the need to use criminal law in order to achieve punitive purposes. I agree (heartily) with the end he seeks and even more with his general precept that "the criminal law should be reserved for the most damaging wrongs and the most culpable defendants." But I believe that the means he proposes would be counterproductive – and would probably expand, rather than contract, the operative scope of the criminal law as an …

Eastern Europe: Observations And Investment Strategies, Marek Wierzbowski

Vanderbilt Journal of Transnational Law

It is my impression that right now an American lawyer has no problem getting acquainted with East European laws concerning foreign investment. There are so many translations now in this country that almost every new law is immediately translated into English. The American lawyer can get to this text at almost the same time as the East European lawyer can get to it.

So it is very easy to get acquainted with legal texts of the most important laws from the point of view of foreign investors, but there are some traps. And it is my impression that when lawyers …

Case Comment, Jeffry B. Gordon

Vanderbilt Journal of Transnational Law

This Case Comment discusses the ability of a United States plaintiff to serve process pursuant to the Hague Service Convention on a defendant residing in Japan. The United States Court of Appeals for the Eighth Circuit held that the Convention generally prohibits service on foreign defendants by registered mail. This Case Comment discusses the history of the case, the objectives of the Convention, the law of service of process in Japan, and United States law of service of process on foreign parties under the Federal Rules of Civil Procedure. The author then discusses United States common law interpreting article 10(a) …

Legal Factors In The Acquisition Of A United State Corporation: Litigation By Hostile Targets, Johan E. Droogmans

LLM Theses and Essays

Acquisitions of United States corporations have become increasingly complex takeover contests, where bidders and target corporations are forced into offensive and defensive litigation strategies to protect their respective interests. Targets often assert that the bidders have violated federal or state securities laws, federal antitrust laws, federal margin regulations, federal and state regulatory systems, and federal anti-racketeering laws. These lawsuits are primarily based on the principal federal regulation of takeovers in section 14(a) of the Securities and Exchange Act of 1934 and the Williams Act. Target litigation is customary, but entails certain disadvantages; a lawsuit rarely stops an offer, is expensive, …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

CIVIL JUDGMENT RECOGNITION AND THE INTEGRATION OF MULTIPLE STATE ASSOCIATIONS: CENTRAL AMERICA, THE UNITED STATES OF AMERICA, AND THE EUROPEAN ECONOMIC COMMUNITY

By Robert C. Casad

Lawrence: The Regents Press of Kansas, 1981. Pp. 258.$25.00.

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COMPARATIVE LAW YEARBOOK

VOL. 4, 1980

Edited by Dennis Campbell

The Hague/Boston/London: Martinus Nijhoff Publishers, 1981. Pp. 371.

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CONSTITUTION-MAKING: PRINCIPLES, PROCESS, PRACTICE

By Edward McWhinney

Toronto: University of Toronto Press, 1981.Pp. 231. $20.00.

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THE ENVIRONMENTAL LAW OF THE SEA

Edited by Douglas M.Johnston

Gland, Switzerland: International Union for Conservation of Nature and Natural Resources, 1981. Pp. 419.

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INTERNATIONAL BUSINESS: ENVIRONMENTS AND …