Comparative and Foreign Law Commons^™

On The "Auschwitz Lie", Herbert A. Strauss, Ernst Nolte, Helge Grabitz, Christian Meier

Michigan Law Review

In the November 1986 issue of the Michigan Law Review, Professor Eric Stein addressed the then-recent German legislation prohibiting the "Auschwitz lie." The "Auschwitz lie" refers to contemporary attempts to deny the historical truth of the Holocaust.

In the time since his article was published, Professor Stein has corresponded with several European scholars on the issues raised by the 1985 legislation. That correspondence, though brief, highlights the contentious aspects of Professor Stein's analysis; it suggests that the issues of restricting "historical speech," promoting national consciousness, attributing collective guilt, and identifying the role of courts in punishing historical lies remain troublesome …

Forum Shopping In Products Liability Actions: A Comparison Between The United States, France And Germany, Lothar W. Baum

LLM Theses and Essays

The goal of this research is to state the current situation concerning products liability in the United States, the Federal Republic of Germany and more briefly, France and to compare the different systems. Emphasis will be given to the substantive laws, in particular to the new EC Directive and its adoption in the Federal Republic of Germany. Also, it will discuss the current German law, since this will be valid for all claims initiated before the enactment of the new ProdHaftG. Further, based on the previous analysis, it will be shown where a consumer is in the most favorable position …

Per Se Legality Of Vertical Restraints: Contested In America -- Not Debated In Germany: Search For Reasons And Comparison, Rainer F. Hildebrandt

LLM Theses and Essays

The approach towards vertical restraints depends heavily on the outcome of the "battle for the soul of antitrust". Therefore, to make the implications of the dispute more comprehensible, this study necessarily has to prefer to the basics of antitrust policy such as legislative history and political underpinnings. The second chapter addresses the underlying values of American and German antitrust laws and compares the concepts chosen to protect these values. Based on these foundations, chapter three evaluates resale price maintenance. In chapter four, the Supreme Court's judgment in Business Electronics Corp. v. Sharp Electronics Corp. is analyzed according to the GWB …

Book Review Of Impressions Of Law In East Germany: Legal Education And Legal Systems In The German Democratic Republic, James R. Maxeiner

Journal of Legal Education

No abstract provided.

The American Advantage: The Value Of Inefficient Litigation, Samuel R. Gross

Articles

In a recent article, The German Advantage in Civil Procedure,1 Professor John Langbein claims that the German system of civil litigation is superior to the American; in an earlier article he makes a parallel claim about German criminal procedure.2 Roughly, Professor Langbein argues that by comparison to the German process, American litigation is overly complex, expensive, slow, and unpredictable - in short, inefficient.3 Professor Langbein is not the first and will not be the last to criticize American legal institutions in these terms, but he expresses this criticism particularly well: he is concise and concrete, he describes American practice by …

New Constitutional And Penal Theory In Spanish Abortion Law, Richard Stith

Law Faculty Publications

No abstract provided.

Foreword, Donald P. Kommers

Journal Articles

Professor Zeidler's article appears in the sixty-second volume of the Notre Dame Law Review, in English, for the first time. It is the most comprehensive and up-to-date treatment of the Federal Constitutional Court's decisional procedures to appear so far in an American law review. It should interest students of comparative constitutional law as well as American scholars alarmed by the United States Supreme Court's claims to finality or exclusivity in constitutional interpretation. By the use of certain decisional modes described by President Zeidler, the German Court provides the legislature with considerable leeway in meeting its constitutional obligations. In doing …

History Against Free Speech: The New German Law Against The "Auschwitz" -- And Other -- "Lies", Eric Stein

Michigan Law Review

An American observer would expect the central issue in the public debate to be the conflict between the constitutionally protected values of individual freedom of expression on the one hand and public security and personal honor on the other. This, however, has not been the case. To the contrary, the constitutional issue has played a marginal role in the legislative process, and it has been resolved by the courts with obvious ease in favor of the constitutionality of the previous legislation on the same general subject. There is every reason to believe that the new law will also be upheld, …

Planning Under The National Environmental Policy Act: The Use Of Environmental Impact Statements In Agency Decisionmaking, Ralf Marxen

LLM Theses and Essays

This article focuses on Environmental Impact Statements (EIS) as part of the Federal National Environmental Policy Act and will therefore not deal with the different State Environmental Policy Acts (SEPA) or their relation to and interaction with Federal legislation. Furthermore, this article will focus upon those issues that are of special relevancy to the possible adoption of EISs into the German legal system. The article will also address cost-benefit issues related to the EIS process. Part VIII (judicial review) will only concentrate on the judicial review of administrative action concerning environmental planning through EISs.

A House Of Lords' Judgment, And Other Tales Of The Absurd, Alan Watson

Scholarly Works

In this paper I want to look at four approaches to deciding a case in different societies-contemporary England, uncodified civil or 'mixed' law systems (with an example from 17th century Scot-land and another from early 20th century South Africa), 19th century France after codification, 15th century Germany with a glance at 13th and 14th century Spain-where the attempt is made each time to reach the correct decision by applying the mental process thought most appropriate. None of the approaches examined here is result-oriented, and to outsiders, especially to lawyers brought up in a different legal culture, the mental process seems …

The Well-Ordered Police State: Social And Institutional Change Through Law In The Germanies And Russia, 1600-1800, Michigan Law Review

Michigan Law Review

A Review of The Well-Ordered Police State: Social and Institutional Change Through Law in the Germanies and Russia, 1600-1800 by Marc Raeff

Political Asylum In The Federal Republic Of Germany And The Republic Of France: Lessons For The United States, T. Alexander Aleinikoff

University of Michigan Journal of Law Reform

The recent flood of asylum claims, and the concerns it engenders, are not peculiar to the United States. Western European nations have witnessed similar increases in asylum applications over the past decade, .and institutions charged with adjudicating claims have become severely overburdened. This Article will describe the experience of the Federal Republic of Germany and the Republic of France in coping with the explosion of asylum claims. A comparative analysis may provide perspective on the American situation and perhaps suggest - or rule out - proposals for change currently under consideration in the United States. To appreciate the saliency of …

Empirical Research About Law: The German Picture With Comparisons And Observations, Robert A. Riegert

Penn State International Law Review (1982 - 2011)

While studying current legal developments in West Germany during the summer of 1979, the author became convinced that the most important development in German law in the past two decades was the movement toward empirical research about law. This research is often referred to by German jurists as fact research in law. During the intervening years, the author has been able to trace dome major developments of this movement.

The principal aim of this article is to furnish information to the American legal community about social-fact research in law resulting from the German experience. Discussion of Germany's experience is appropriate …

Political Crime In Europe: A Comparative Study Of France, Germany, And England, Michigan Law Review

Michigan Law Review

A Review of Political Crime in Europe: A Comparative Study of France, Germany, and England by Barton Ingraham

Regulation Of Concentration Through Merger Control: Germany's Continuing Efforts, Kurt Stockmann

Michigan Journal of International Law

The Federal Republic of Germany's Law Against Restraints on Competition (the ARC), establishes an extensive regime for regulating market-dominating enterprises. Therefore, large corporations, both national and multinational, are the subject of particular scrutiny in the Federal Republic. Rather than identify and address all the provisions pertinent to corporate concentration (a task whose tedium would be matched only by its enormity), this analysis will undertake three tasks: (1) briefly describe the general scope of West German merger law, (2) discuss the application of the law to cases of transnational concentration, and (3) explain the proposed Fourth Amendment to the ARC as …

German Merger Control: A European Approach To Anticompetitive Takeovers, Rolf Belke, W. David Braun

Northwestern Journal of International Law & Business

European free-market countries recently have begun to enact more laws regulating mergers and joint-ventures, with Germany at the forefront. In this article, Messrs. Belke and Braun intensively analyze the German merger control law, including the criteria that necessitate a report to the German Cartel Office, its application of the substantive merger control rules, and possible exceptions to an anti-merger ruling. They also explore the impact of the German law on international mergers and joint-ventures. Finally, they discuss in detail the first two German Supreme Court decisions that construed the substantive rules and contrast them with similar American cases.

Politics And Jurisprudence In West Germany: State Financing Of Political Parties, Donald P. Kommers

Journal Articles

The relationship between political parties and representative government has been an important consideration in the constitutional jurisprudence of the Federal Republic of Germany. The Federal Constitutional Court has gone further than any other constitutional tribunal in the West to promote a free and competitive party system, and the Court’s decisions affecting the status of parties under the Basic Law, especially those having to do with party finance, are a marvelous illustration of the interplay between politics and law. The Federal Constitutional Court’s decision in 1966 to invalidate a federal plan for subsidizing political parties is a good example of the …

German Association Of Comparative Law: Bibliography Of German Law, Lilly Melchior Roberts

Michigan Law Review

A Review of Bibliography of German Law. Edited by the German Association of Comparative Law.

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

Macdonald: Fraud On The Widow's Share, Max Rheinstein

Michigan Law Review

A Review of FRAUD ON THE WIDOW'S SHARE. By William D. Macdonald

The Approach To German Law, Max Rheinstein

Indiana Law Journal

This article is from the lecture series, Problems in Comparative Law, delivered at the Indiana University School of Law in Bloomington in March and April, as the 1959 Addison C. Harris Memorial Lectures.

Specific Performance In France And Germany, John P. Dawson

Michigan Law Review

Edgar Durfee studied long and closely the subject of specific performance. He taught it for many years, wrote about it and planned to ·write more. He conceived it broadly, as he did every subject that ever had his attention, but he had a lively interest in details, including very technical details. Long before others and much more than most, he saw the importance of our remedial system both in shaping law and as a reflection of its larger purposes. All those who learned from him will remember as long as memory lasts the insight he gave and the hidden meanings …

Foreign Exchange Restrictions And Public Policy In The Conflict Of Laws: Part Ii, Evsey S. Rashba

Michigan Law Review

Political Laws have been the subject of a much disputed doctrine. It has been stated by Dicey, and by other authoritative writers in various countries, that a court has no jurisdiction to entertain an action for the enforcement of a "political law" of a foreign state. The term "political law" is not limited to the field of public law. It is, of course, only exceptionally that rules governing the relations between a state and its citizens are given extraterritorial effect. The doctrine goes further. It holds that rules which are technically a part of private law, but which are designed …

Legal Techniques And Political Ideologies: A Comparative Study, Alexander H. Pekelis

Michigan Law Review

The problem with which we are going to deal is one of comparative law, a discipline probably even more illusory than legal science itself. A body of laws represents in itself neither a social reality nor a social ideal. One of the difficulties that every historian faces in trying to reconstruct a period of the past with the help of legal monuments is due to the great variety of relations existing between legal rules and social reality. So, e.g., legal monuments generally contain in an inextricable confusion at least two contradictory types of rules: rules which are a simple restatement …

The Premises Of The Judgment As Res Judicata In Continental And Anglo-American Law, Robert Wyness Millar

Michigan Law Review

That every judicial judgment, whatever its character, consists of premises and conclusion is a fact sufficiently obvious. In our system, especially, expression of the premises must very often be sought outside the actual judgment-order and collected from other parts of the judicial record or even from evidence aliunde of what took place at the hearing. But the legal nature of the relation between premises and conclusion is independent of the particular structure of the record and the mode of ascertaining what those premises were. Given satisfaction of the requirements of the law with respect to identity of parties, it is …

German Social Honor Courts, Harlow J. Heneman

Michigan Law Review

Germany's National Socialist regime has prided itself on its ability to maintain peaceful employer-employee relations at a time when other countries of the world are seriously troubled by industrial disturbances. The German government has actively intervened to see that neither employers nor workers overstep bounds set for them by Nazi social and economic policies. Dr. Robert Ley, head of the German Labor Front, has said that the government owes its success in this field to measures that are a "healthy combination of freedom and compulsion." Since Hitler's advent to power, the former organizations of both employers and employees have largely …

The Investigating Magistrate (Juge D'Instruction) In European Criminal Procedure, Morris Ploscowe

Michigan Law Review

For nearly five centuries the distinctive figure in the preliminary stages of European criminal proceedings has been the investigating magistrate, known in France as the juge d'instruction. Although temporarily eclipsed by the revolutionary reforms in France in 1791, he was soon re-established. In other European countries the juge d'instruction continued to be the central figure in the preliminary procedure through all the reforms achieved by the liberal movements of the nineteenth century. The investigating magistrate has remained a purely Continental institution. In theory and in practice he embodies the essential difference between Continental and Anglo-American criminal procedure preliminary to trial.

Book Reviews

Michigan Law Review

Multiple book reviews by various authors.

Conflict Of Laws-Renvoi Doctrine

Michigan Law Review

H, an Englishman, married W in England. On separation H acquired a domicil in Germany. A child was thereafter born to Y, a woman with whom H was living in Germany. H subsequently divorced W in Germany and married Y. Whether the child was legitimate determined whether H had validly exercised a power of appointment in an English settlement. Held, legitimacy is to be determined by the law of the domicil, including its rules of private international law. Germany, referring the matter to English law, found a remittance which Germany accepted and applied German municipal law. The child, by …

Recognition Of Foreign Decree Annulling Marriage

Michigan Law Review

Decisions considering the question of jurisdiction to annul a marriage or the recognition to be afforded to a decree of annulment rendered by a But upon questions in the law of divorce authorities are legion. American lawyers naturally tum to divorce as the means of securing relief for clients from distasteful or unbearable marital difficulties. But annulment cases are increasing in number, and the increase in some states may be expected to continue. In Di Lorenzo v. Di Lorenzo, 174 N. Y. 467, the court of appeals said that every misrepresentation of a material fact, made with the intention …