Civil Law Commons^™

Winning The Battle But Losing The War: Towards A More Consistent Approach To Prevailing Party Fee Shifting In The Contractural Context, John R. Schleppenback

Florida A & M University Law Review

As a general matter, history has not been very kind to losers. In the turmoil of the Middle Ages, loss on the battlefield could also mean the looting of one's property, the sacking of one's home, and potentially even the assault of one's spouse. The nineteenth century was the era of "to the victors belong the spoils," meaning that an electoral win allowed the prevailing political party a complete monopoly on political appointments and government contracts to the exclusion of the loyal opposition. Even today, professional athletes would sooner face anonymity than defeat on the playing field, living by the …

A Critique Of The Uniquely Adversarial Nature Of The U.S. Legal, Economic And Political System And Its Implications For Reinforcing Existing Power Hierarchies, Areto A. Imoukuede, Jim Wilets

Journal Publications

This article argues that the uniquely adversarial nature of the United States litigation system, rooted in the medieval English system of "trial by battle," has replicated itself in almost all aspects of American society, distinguishing the United States from even its common law counterparts that shared the genesis of their legal systems in English "trial by battle." This "trial by battle" is often characterized in the context of speech by terms such as the 'marketplace of ideas," or in the context of economics by terms such as "the law of the jungle.," Even resolution of basic Constitutional concepts are subject …

Ab(Ju)Dication: How Procedure Defeats Civil Liberties In The War On Terror, Susan Herman

Faculty Scholarship

No abstract provided.

Race, Rhetoric, And Judicial Opinions: Missouri As A Case Study, Brad Desnoyer, Anne Alexander

Faculty Works

This Essay studies the relationship between race, rhetoric, and history in three twentieth century segregation cases: State ex rel. Gaines v. Canada, Kraemer v. Shelley, and Liddell v. Board of Education. Part I gives a brief overview of the scholarship of Critical Race Theory, majoritarian narratives and minority counter-narratives, and the judiciary’s rhetoric in race-based cases. Part II analyzes the narratives and language of Gaines, Kraemer, and Liddell, provides the social context of these cases, and traces their historical outcomes.

The Essay contends that majoritarian narratives with problematic themes continue to perpetuate even though court opinions have evolved to use …

The Selection Of Litigation Against Government Agencies: Evidence From China, Wei Cui, Zhiyuan Wang

All Faculty Publications

We test the relevance of the selection theory of litigation in a contemporary, civil law setting, using Chinese judicial data that span 25 years regarding lawsuits against government agencies. Civil law systems may be characterized by lower costs of litigation and lower rates of settlement than the U.S. legal system, and therefore the presence of selection effects cannot be assumed. We show that selection effects are indeed manifest in Chinese administrative litigation, and suggest that this may be explained by hidden or intangible litigation costs. Our test for selection effects builds on the approach of previous U.S. studies and potentially …

Regime Shift Of Ip Lawmaking And Enforcement From Wto To The International Investment Regime, James Gathii, Cynthia Ho

Minnesota Journal of Law, Science & Technology

No abstract provided.

Accountability In Corporate Governance In China And The Impact Of Guanxi As A Double-Edged Sword, Andrew Keay, Jingchen Zhao

Brooklyn Journal of Corporate, Financial & Commercial Law

Accountability is an essential aspect of corporate governance and it has been argued that the “wenze” system of accountability in China comes very close to the accountability systems developed in Anglo-American corporate governance. This Article examines the role of cultural factors, namely guanxi and its derivatives, in corporate governance in China to determine what effect, if any, these cultural factors have on the operation and development of the “wenze” system in large listed companies. The Article specifically considers whether the cultural elements affect accountability, and if so, how and to what extent. It also explores whether these cultural factors are …

Hidden By Sovereign Shadows: Improving The Domestic Framework For Deterring State-Sponsored Cybercrime, Eric Blinderman, Myra Din

Vanderbilt Journal of Transnational Law

This Article analyzes the domestic legal framework applicable to state-sponsored cybercrime. The Article describes several instances where state sovereigns perpetrated cybercrimes in the United States. It then outlines the legal framework that the US government utilizes to hold accountable those who perpetrate such crimes. This Article argues that the current legal framework does not have a deterrence effect on sovereign states engaged in such activity and that prosecutors who seek to apply the current framework against state sovereigns or who misattribute the source of such attacks could negatively impact US foreign policy. To remedy these defects, this Article asserts that …

Dance Like No One Is Watching, Post Like Everyone Is: The Accessibility Of "Private" Social Media Content In Civil Litigation, Nicole A. Keefe

Vanderbilt Journal of Entertainment & Technology Law

An increasing amount of information about an individual manifests in online activity, specifically through the use of the numerous social media platforms available today. Though these platforms offer users the ability to shield content behind various degrees of privacy options, even the most private information might be accessed in the course of robust legal proceedings. This Note analyzes the accessibility of private social media content in civil litigation through the vehicles of the Federal Rules of Civil Procedure, the Model Rules of Professional Conduct, and the Federal Rules of Evidence. The solution suggests methods for incorporating this new technological medium …

Spoliating The Adverse Inference Instruction: The Impact Of The 2015 Amendment To Federal Rule Of Civil Procedure 37(E), Alexandra M. Reynolds

Georgia Law Review

The discovery process relies heavily on the information
that we store on our electronic devices. The ease with
which we tap into the many capabilities of technology,
however, exposes litigants to a significant risk-spoliation
of evidence. Evidence may be spoliated accidentally or
intentionally, but when spoliation does occur, the party
seeking that evidence often seeks a remedy from the court.
The adverse inference instruction has functioned as one of
those remedies. Courts split on what level of culpability is
required to issue an adverse inference instruction. The
Rule 37(e) amendments attempt to address rising costs of
electronic discovery and resolve …

Resolving Civil Forfeiture Disputes, Rishi Batra

Faculty Articles

Under a legal process known as civil asset forfeiture, state and federal laws allow law enforcement officials and the government to seize assets from individuals who are not charged with a crime if the property is suspected of being involved in criminal activity. This is true even if the owner of the property is not charged with the underlying crime. Indeed, in 2014, The Washington Post analyzed 400 cases in seventeen states that were examples of civil forfeiture during traffic stops. Police stopped motorists under the pretext of a minor traffic infraction, analyzed the intentions of motorists by assessing nervousness, …

Tradition And Culture In Africa: Practices That Facilitate Trafficking Of Women And Children, Norah Hashim Msuya

Dignity: A Journal of Analysis of Exploitation and Violence

Many states in Africa have adopted legislative, administrative and institutional measures to combat trafficking in human beings. These measures include, among other things, the formulation and implementation of both national and regional action plans by African states to provide for comprehensive and coordinated interventions. Many African countries have also enacted an anti-trafficking legislation at the country level. Despite these measures, African women and children have been trafficked annually worldwide for purposes of forced labor, sexual exploitation, and domestic servitude. Additionally, women and children are trafficked within their countries from rural to urban areas. Misconception and abuse of African tradition and …

Mixed Legal Systems, East And West, Stephen Thomson

Journal of Civil Law Studies

No abstract provided.

Cover, Masthead & Contents

Journal of Civil Law Studies

No abstract provided.

Les Termes Comme Miroir Et Loupe D’Une Société? L’Exemple Du Code Civil Italien, Enrica Bracchi

Journal of Civil Law Studies

La langue est souvent le vecteur de concepts et de visions propres à une société ou une partie de celle-ci ; c’est à travers la langue que se dévoilent les contradictions, le refus ou l’assentiment par rapport à de nouvelles réalités sociales et sociétales, qui peuvent être réglementées par le droit. Le droit, quant à lui, se sert de la langue pour nommer ces réalités et la terminologie juridique ou parajuridique devient d’une part un miroir qui reflète des tendances et des variations et d’autre part une loupe car elle amplifie les contrastes et les points de détail concernant certaines …

Pourquoi Et Comment Former Des Juristes Trilingues?, Dominique Garreau

Journal of Civil Law Studies

No abstract provided.

Translating The Charitable Affectation In Private Law, Anne-Sophie Hulin

Journal of Civil Law Studies

Traduire sans trahir, voilà la difficulté du traducteur comme celle du comparatiste. Comment garantir que les notions, une fois passées au filtre juridique, ne subissent pas une certaine altération, et ne perdent par là un peu d’elles-mêmes? Cet article s’intéresse donc à un genre particulier de traduction où des concepts universels se voient convertis en notions juridiques. Dans le cas précis de la philanthropie, la traduction se révèle moins aisée en droit civil qu’en common law au point de s’interroger de la capacité de ce premier à accueillir les mécanismes philanthropiques. Il en ressort alors que les traditions juridiques n’ont …

Ruminations Around The Dictionary Of The Civil Code, Alain Levasseur

Journal of Civil Law Studies

No abstract provided.

Jersey: Vocabularies Of Coûtume And Code, Steven Pallot

Journal of Civil Law Studies

The Channel Islands were an integral part of the Duchy of Normandy until 1204 when King John lost Continental Normandy to the French King, Philip Augustus. Jersey and Guernsey did not submit to the jurisdiction of the French King but retained allegiance to the King in England as Duke of Normandy. The customary laws of the Islands retain their Norman root to this day in spite of strong legal and cultural influences from England in the 19^thand 20Centuries. A rich legal vocabulary in both French and English has evolved in these mixed legal jurisdictions.

This article examines the …

A Dialogue To Conclude A Conference On Legal Translation:Synthèse À Deux Voix, Matthias Martin, Olivier Moréteau

Journal of Civil Law Studies

No abstract provided.