Comparative and Foreign Law Commons^™

Administrative Law: The Hidden Comparative Law Course, Peter L. Strauss

Faculty Scholarship

What does today's Administrative Law course give your students that you might not be aware of and might be helped by knowing? That, as I understand it, is the question I am to answer. But we may also want to think about the overall shape of the curriculum: it may be useful to ask about fundamental issues our students may not be aware of, that may not be dealt with elsewhere in the law school curriculum. I'll spend most of my time on the question I've been asked to address, but I hope you will accept a few sentences on …

Regulatory Federalism: A Reprise And Introduction, George A. Bermann

Faculty Scholarship

This colloquium, like its predecessor, proceeds on the basis of a series of assumptions. First, it assumes that the federalism dimension of the regulatory state is an important one Gust as is the regulatory dimension of the federal state). In introducing our first colloquium, I suggested that, although determining the content of public policy is critical in a democratic society, also critical is determining the level of government at which the choice of policy is made. Ingolf Pernice remarked then that a federal system is "any legal entity [which is] comprised of states for the purpose of pursuing certain common …

The Legal Structure Of The Chinese Socialist Market Enterprise, William H. Simon

Faculty Scholarship

China's phenomenal economic growth since 1978 has been accompanied by a cascade of institutional innovation and experimentation. In at least this one sense a hundred flowers are blooming in the People's Republic. The range of institutional forms and their defiance of the conventions of economic organization in both capitalist and socialist societies are impressive.

The Chinese leadership calls the new order by the unfamiliar (and to some, oxymoronic) term "socialist market" economy. Its "market" dimensions include deregulation of most prices, decentralization of decision-making to the household in agriculture and to the enterprise in industry, incentive schemes for peasants, managers, and …

Bankruptcy Law In European Countries Emerging From Communism: The Special Legal And Economic Challenges, Samuel Bufford

Faculty Scholarship

Bankruptcy law is developing rapidly in the countries of Central and Eastern Europe (CEE) that have recently escaped the domination of the Union of Soviet Socialist Republics (USSR). The communist governments fell in those countries that were separate from the USSR in 1989, and those countries that were a part of the USSR gained their independence and acquired new non-communist governments in 1989 (the Baltic states) and 1991 (Ukraine, Belarus, Moldova, and Russia). While many other areas of law that are basic to the development of a market economy need substantial development or revision, bankruptcy law is leading the way, …

Protecting Possession, Ugo Mattei

Faculty Scholarship

No abstract provided.

Anti-Essentialism, Relativism, And Human Rights , Tracy E. Higgins

Faculty Scholarship

Confronted with the challenge of cultural relativism, feminism faces divergent paths, neither of which seems to lead out of the woods of patriarchy. The first path, leading to simple tolerance of cultural difference, is too broad. To follow it would require feminists to ignore pervasive limits on women's freedom in the name of an autonomy that exists for women in theory only. The other path, leading to objective condemnation of cultural practices, is too narrow. To follow it would require feminists to dismiss the culturally distinct experiences of women as false consciousness. Yet to forge an alternative path is difficult, …

Governing Networks And Rule-Making In Cyberspace, Joel R. Reidenberg

Faculty Scholarship

The global network environment defies traditional regulatory theories and policymaking practices. At present, policymakers and private sector organizations are searching for appropriate regulatory strategies to encourage and channel the global information infrastructure (“GII”). Most attempts to define new rules for the development of the GII rely on disintegrating concepts of territory and sector, while ignoring the new network and technological borders that transcend national boundaries. The GII creates new models and sources for rules. Policy leadership requires a fresh approach to the governance of global networks. Instead of foundering on old concepts, the GII requires a new paradigm for governance …

Proprietary Norms In Corporate Law: An Essay On Reading Gambotto In The United States, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Politics, Institutions, And Outcomes: Electricity Regulation In Argentina And Chile, William B. Heller, Mathew D. Mccubbins

Faculty Scholarship

Risk, whether market or political, is an important determinant of private investment decisions. One important risk, subject to control by the government, is the risk associated with the hold-up problem: governments can force utilities to shoulder burdensome taxes, to use input factors ineffectively, or to charge unprofitable rates for their service. To attract private investment governments must be able to make commitments to policies that are nonexpropriative (either to contracts that guarantee very high rates of return or to favorable regulatory policies). These commitments, of course, must be credible.

Judgments about the credibility of commitments to regulatory policies are based …

Comparing Implied And Express Constitutional Freedoms, David S. Bogen

Faculty Scholarship

No abstract provided.

Why Teach International Family Law In Conflicts?, William L. Reynolds

Faculty Scholarship

[The author] sets forth a challenge to conflicts professors: to teach international family law in their conflict of laws classes. At present, many conflicts professors avoid teaching international family law, in part because the study of this subject is complicated by several statutes addressing particularly difficult issues. Ignorning international family law is unwise, because many United States citizens and lawyers are likely to confront such problems.

European Community Law From A U.S. Perspective, George A. Bermann

Faculty Scholarship

Although less than forty years have passed since the founding of the European Economic Community (now the European Community), the lifetime of the Community is well marked temporally. The term of each Commission furnishes a convenient time-line for measuring the Community's progress in legal integration. Since the 1970s, each year has been punctuated by two or more "summit" meetings of heads of state or government. These summits not only are key markings in their own right, but also furnish an occasion for additional monitoring of the Community's state of health. Throughout the 1970s and into the 1980s, the Community submitted …

Planned Constitution Never Got Written, But Israel Still Got Constitutional Law, Marcia R. Gelpe

Faculty Scholarship

Israel's development of constitutional law without a written constitution presents a fascinating picture of how a system, unable to develop a constitution in the usual manner, has developed one in another manner. It shows how innovative lawmaking can be - and sometimes must be - to maintain a democratic political system.

Regulatory Decisionmaking In The European Commission, George A. Bermann

Faculty Scholarship

As an institution variously described as the "motor" or "engine" of European integration and as the European Union's "executive branch," the Commission of the European Communities finds itself at the center of Community decisionmaking. Yet its decisional processes are still quite poorly understood, at least in the United States. The relatively poor grasp of Commission decisionmaking is certainly not due to any general lack of interest in procedure within the American audience. The problem lies more in the highly restrictive view of decisionmaking that traditionally dominates procedural accounts of the Community institutions. Those accounts have tended to reflect three preoccupations. …

Codifying Property Law In The Process Of Transition: Some Suggestions From Comparative Law And Economics, Ugo Mattei

Faculty Scholarship

No abstract provided.

The Comparative Law And Economics Of Penalty Clauses In Contract, Ugo Mattei

Faculty Scholarship

No abstract provided.

The Empire Of Death: How Culture And Economics Affect Informed Consent In The U.S., The U.K., And Japan, George J. Annas, Frances H. Miller

Faculty Scholarship

Historically, most Americans have treated health care as a private commodity whose price, and therefore availability, is primarily determined by market forces. In such a context, the law not unsurprisingly places a high premium on information disclosure by physicians. Personal autonomy-an individual's power to choose among medical options-enjoys its most zealous protection under U.S. jurisprudence.⁷ The dominant U.S. version of informed consent is grounded on principles of patient/consumer autonomy, and seems to enhance market choice. But a strong theme of collectivism now runs through some discussions of U.S. health policy.⁸ President Clinton was elected at least in part …

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

Efficiency As Equity: Insights From Comparative Law And Economics, Ugo Mattei

Faculty Scholarship

No abstract provided.

Why The Wind Changed: Intellectual Leadership In Western Law, Ugo Mattei

Faculty Scholarship

No abstract provided.

Taking Subsidiarity Seriously: Federalism In The European Community And The United States, George A. Bermann

Faculty Scholarship

For a principle that has dominated discussions of European federalism for over five years, subsidiarity has received surprisingly poor academic mention. Subsidiarity has been criticized as "inelegant . . .Eurospeak," "the epitome of confusion," and simple "gobbledegook." It has been described by some as nothing new and by others as quite novel and actually quite dangerous. The President of the Commission of the European Communities, said to be an enthusiast of subsidiarity, finds it used at times as an "alibi," and more specifically as "a fig leaf ... to conceal [an] unwillingness to honour the commitments which have already been …

The Impact Of The European Community On Labor Law: Some American Comparisons, Marley S. Weiss

Faculty Scholarship

No abstract provided.

The History Of The Patent Harmonization Treaty: Economic Self-Interest As An Influence, R. Carl Moy

Faculty Scholarship

How shall the United States decide whether to adopt the Patent Harmonization Treaty? What questions shall we ask? Whose answers shall we trust? What sources of information can provide us with the background needed for these inquiries? This article offers a framework in which to ask, and begin to answer, these questions. It focuses on the international community's past efforts to harmonize the law of patents. It asserts not only that history provides context, but also, that the same history yields lessons directly applicable to many of the treaty's basic issues. Section I discusses the immediate history of WIPO's efforts …

Investment Companies As Guardian Shareholders: The Place Of The Msic In The Corporate Governance Debate, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Comparative corporate governance is both necessary and hard. Recent scholarship has identified the political and historical contingency of the American pattern of corporate governance. The Berle-Means corporation, with its separation of management and risk bearing and the attendant agency conflict between managers and shareholders, is now widely recognized as being as much a creature of the American pattern of law and politics as the handiwork of neutral market forces. This recognition underscores the need to place the American experience in a comparative perspective. Other patterns of corporate governance can provide both insights into the operation of our own and a …

Conflicts Of Copyright Ownership Between Authors And Owners Of Original Artworks: An Essay In Comparative And International Private Law, Jane C. Ginsburg

Faculty Scholarship

Most, if not all, copyright laws distinguish between ownership of the incorporeal copyright, and ownership of chattels. A generally-accepted corollary holds that alienation of the chattel that constitutes the material form of a copyrighted work does not carry the copyright with it. Applying this principle to works of the visual arts, it should be clear that sale of a painting, even if it is the only "copy" of a work, is not a transfer of the exclusive rights under copyright to reproduce the work or to create derivative works based on the painting. Similarly, ownership of the copyright confers no …

Subsidiarity And The European Community, George Bermann

Faculty Scholarship

The notion of subsidiarity in European federalism labors from all manner of burdens. It seems elusive by nature, commentators claiming that they do not know what subsidiarity means or, if they do, that they do not see in it anything new. At the same time subsidiarity has been presented at least in some quarters as a panacea for the Community's current malaise. It clearly is not that. Even if subsidiarity has not been oversold, it is almost certainly overexposed, a condition that the present Article is unlikely to cure.

My purpose in this Article is simply to help make some …

Consumer Protection Laws In Bulgaria, James R. Mccall, Lonel M. Allen, Vincent Brannigan, Janet Crosson

Faculty Scholarship

No abstract provided.

Litigation Cost Allocation Rules And Compliance With The Negligence Standard, Keith N. Hylton

Faculty Scholarship

This article examines compliance, incentives to bring suit, and incentives to settle in a negligence regime under alternative litigation cost allocation rules. Four allocation rules are considered: the American rule, which requires each party to pay his own costs; the British rule, which requires the losing party to pay the winning party's costs in addition to his own; the prodefendant rule, which requires the defendant to pay only his own costs if he loses and nothing otherwise; and the proplaintiff rule, which requires the plaintiff to pay only his own costs if he loses and nothing otherwise.

The Proper Forum For A Suit: Transnational Forum Non Conveniens And Counter-Suit Injunctions In The Federal Courts, William L. Reynolds

Faculty Scholarship

No abstract provided.

Institutional Reform In Eastern Europe: Evolution Or Design?, Roman Frydman, Andrzej Rapaczynski

Faculty Scholarship

Most recent studies of privatization in Eastern Europe focus on its impact on individual enterprises. In our previous work, we examined this issue from the viewpoint of the future corporate governance structure in Eastern Europe. The aggregate effects of privatization have been largely neglected, perhaps on the assumption that they have no particular bearing on how privatization is to be effected at the enterprise level. It is very important, however, to link the discussion of the various approaches to large-scale privatization with a consideration of other obstacles in the transition to a market economy. These obstacles, which include the weakness …