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This book is a general introduction to the law and legal system of the United States and the relationship between law and society. Written for both students and general readers, it uses anecdotes, historical detail, and modern scholarship to give an overall view of the American legal system. After giving some brief historical background, the book begins with the basic structure of the system: the courts, legislatures, administrative agencies, and the relationship between federal and state law. The book then turns to substantive law, broadly canvassing a range of legal issues with special focus on the criminal justice system and constitutional law and civil liberties. The book finishes with a series of chapters exploring the role of the law, legal culture, and a number of extralegal factors in changing legal behavior. The book situates American law in its historical and social context, and explains how the law and legal culture reflect and, in some cases, prompt changes in American society.

Questions about the nature of law, its relationship with custom, and the distinctive form of legal rules, categories, and reasoning, are placed at the centre of this book. The book considers contemporary debates on human rights and new forms of property, and also delves into the rich corpus of texts and codes studied by legal historians, classicists, and orientalist scholars. Studies of the great legal systems of ancient China, India, and the Islamic world, unjustly neglected by anthropologists, are examined alongside forms of law created on their peripheries. The costumes of medieval Europe, the codes drawn up by tribal groups in Tibet and the Yemen, village laws on both sides of the Mediterranean, and the intricate codes of saga in Iceland provide rich empirical detail for the book's analysis of the cross-cultural importance of the form of law, as text or rule, and the relative marginality of its functions as an instrument of government or foundation of social order. Examples shed new light upon the interrelations and distinctions between law, custom, and justice. Gradually an argument unfolds concerning the tensions between legalistic thought and argument, and the ideological or aspirational claims to embody justice, morality, and religious truth which lie at the heart of what we think of as law.

This book provides a comprehensive analysis of the foreign bribery laws, and related laws and regulations, in all of the major common law jurisdictions. For Australia, Canada, Ireland, New Zealand, South Africa, the United Kingdom, and the United States, the critical factors associated with the laws that are applied to bribery in foreign settings are explained and analyzed. Given the extent of their extraterritorial reach, the Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act, and the official guidance associated with each are extensively addressed along with the related legal obligations related to record-keeping practices and maintaining adequate internal controls and effective compliance programs. Within the same framework, the foreign bribery legislation in the other major common law jurisdictions—Australia, Canada, Ireland, New Zealand, and South Africa—are similarly addressed. For each jurisdiction, careful attention is given to laws that may expose an individual or entity to private or commercial bribery in foreign settings as well as to the application of laws relating to money laundering and accounting and record-keeping practices to situations involving foreign bribery. Throughout, special attention is given to explaining the criteria used in each jurisdiction to establish liability on the part of an entity or organization.

Are international courts effective tools for international governance? Do they fulfil the expectations that led to their creation and empowerment? Why do some courts appear to be more effective than others, and do so such appearances reflect reality? Could their results have been produced by other mechanisms? This book evaluates the effectiveness of international courts and tribunals by comparing their stated goals to the actual outcomes they achieve. Using a theoretical model borrowed from social science, the book assesses their effectiveness by analysing key empirical data. Its first part is dedicated to theory and methodology, laying out the effectiveness model, explaining its different components, its promise and limits, and discussing the measurement challenges it faces. The second part analyses the role that indicators such as jurisdiction, judicial independence, legitimacy, and compliance play in achieving effectiveness. Part three applies the effectiveness model to the International Court of Justice, the WTO dispute settlement mechanisms (panels and Appellate Body), the International Criminal Tribunals for Rwanda and Yugoslavia, the European Court of Human Rights, and the European Court of Justice, reflecting the diversity of the field of international adjudication.

This book examines the relatively recent and under-explored phenomenon of outward foreign direct investment (FDI) from the large emerging market countries, focusing on the four BRIC states (Brazil, Russia, India, and China) and on the services sector meaning primarily telecommunications, finance, and transport. It considers the international legal framework governing FDI, discussing the nature and extent of the bilateral and regional investment treaty commitments undertaken by each of the BRIC states, including their commitments under the WTO General Agreement on Trade in Services, as well as their obligations as members of the International Monetary Fund and the World Bank. Drawing on trends observed in the regulatory approach of these countries to FDI in services, including the observed flow of FDI both to and now from the developing world, the book proposes a multilateral investment treaty aimed at the liberalisation and protection of FDI in services. The treaty will capture the emerging equilibrium in global FDI patterns signifying a unified approach to the regulation of foreign investment in the growing services economy by developing and developed economies alike. The treaty will strengthen the legitimacy of investor-state dispute settlement and recognise public interest norms such as environmental protection and human rights as well as allow signatories to retain sovereignty over matters relating to national security and economic stability.

Caribbean Integration Law offers an in depth legal analysis of the two main regional organizations in the Caribbean, the Caribbean Community (CARICOM), and the Organisation of Eastern Caribbean States (OECS). It examines the Revised Treaty of Chaguaramas (RTC), the Revised Treaty of Basseterre (RTB) and their respective trade regimes, the CARICOM Single Market and Economy and the OECS Economic Union. It subjects both treaties to sustained, holistic and comparative legal analysis, including analysis of related developments in international institutional law, EU law, and WTO law. Commencing with a review of the historical and economic foundations of Caribbean regional integration, the book fleshes out the potential scope of the legal systems created by the RTC, the RTB, and related treaties. It explores the nature, competences, and law-making functions of the organs of CARICOM and the OECS, and highlights issues related to the enforcement of treaty-related obligations. It looks at the legal systems of CARICOM and the OECS and explores the potential of one source of law, general principles of law. In analysing the CSME and Economic Union, the book scrutinizes the rules related to right of establishment and the freedoms of movement of persons, services, capital, and goods. It provides an overview of the regimes governing subsidies, anti-dumping, competition law, and consumer protection. It reviews the various dispute settlement mechanisms available under both treaties including the two regional courts, the Caribbean Court of Justice (CCJ) and Eastern Caribbean Court of Appeal (ECCA). It critically examines the treaty-interpreting roles of these tribunals, including both their advisory and contentious jurisdictions. Caribbean Integration Law will serve the needs of law students, practising lawyers, judges, and scholars working in the field of comparative regional integration law.

What does it mean when civil lawyers and common lawyers think differently? This book provides a comprehensive introduction to the uses, purposes, and approaches to studying civil and common law in a comparative legal framework. The book covers the jurisdictions of Germany, Sweden, England and Wales, and the United States, and includes a discussion of each country's legal issues, structure, and their general rules. The book explores the discipline of comparative legal studies, rectifying many of the misconceptions and prejudices that cloud our understanding of the divide between the common law and civil law traditions.

This book covers the choice-of-law part of Conflict of Laws (or Private International Law), namely the process of choosing the law that governs disputes that implicate the laws of more than one state or country. Its central focus is on American law, but its peripheral vision is comparative. It is divided into four parts. Part I discusses the federal framework and the impact of the Constitution on choice of law. Part II discusses the structure and operation of choice-of-law rules and the historical evolution of choice-of-law doctrine and methodology from the nineteenth century to the present, through the “revolution” of the 1960s. Part III, consisting of nine chapters, is the heart of the book and is devoted to choice of law in practice. It covers conflicts in torts, products liability, contracts, forum-selection and arbitration clauses, insurance, statutes of limitation, domestic relations, property, marital property, and successions, as well as conflicts between federal law and foreign law. The book examines what courts say, but especially what they do. It identifies the emerging decisional patterns and extracts from them tentative predictions about likely outcomes. Part IV reflects on the next step in the evolution of American conflicts law and offers proposals on the content and orientation of the new Conflicts Restatement, the drafting of which began as this book was completed.

This book chronicles, documents, and celebrates an extraordinary development in the history of Private International Law (PIL) or Conflict of Laws---a massive codification movement around the globe in the last 50 years (1962–2012). During this period, we have witnessed the adoption of more PIL codifications, Regulations, international conventions, protocols, and similar instruments (nearly 200) than in all previous years since the inception of PIL. The book provides a horizontal comparison and discussion of these codifications and conventions. After comparing the way they resolve tort and contract conflicts, the discussion compares the answers of these codifications to some of the fundamental philosophical and methodological dilemmas of PIL. In the process, the book re-examines certain widely held assumptions about choice of law and the art and science of codification in general.

Judicial decision-making is ideally impartial. In reality, judges are influenced by many different factors, including institutional context, ideological commitment, fellow justices on a panel, and personal preferences. Empirical literature in this area increasingly analyzes this complex collection of factors in isolation, when a larger sample size of comparative institutional contexts can help assess the impact of the procedures, norms, and rules on key institutional decisions, such as how appeals are decided. This book explains how the answers to the following institutional questions largely determine the influence of political preferences of individual judges and the degree of cooperation among judges at a given point in time. Who decides how judicial appointments are made? How does an appeal reach the court; what processes occur? Who is before the court; how do the characteristics of the litigants and third parties affect judicial decision-making? How does the court decide the appeal; what institutional norms and strategic behaviors do the judges follow in obtaining their preferred outcome? The authors apply these four fundamental institutional questions to empirical work on the supreme courts of the United States, UK, Canada, India, and the High Court of Australia. The ultimate purpose of this book is to promote a deeper understanding of how institutional differences affect judicial decision-making, using empirical studies of supreme courts in countries with similar basic structures but with sufficient differences to enable meaningful comparison.

This volume begins where volume 1 ended and traces legal development in Maryland, Virginia, Massachusetts, and the smaller New England colonies from 1660 to the mid-eighteenth century. A main claim of the volume is that the Glorious Revolution changed England’s policy toward its colonies. Prior to the revolution, Charles II and James II sought to centralize power in the English empire; the means they chose to achieve centralization was to continue governing Maryland and Virginia through the common law and to impose the common law on Massachusetts and the rest of New England. After the Glorious Revolution, William III continued the policy of imposing the common law. But William III and his Hanoverian successors were less concerned than their Stuart predecessors had been with centralizing power; their aim was to ensure the hegemony of Protestantism in each colony as they assembled a Protestant coalition to defeat the efforts of the Catholic Louis XIV to establish what William III called “universal monarchy.” Thus, although every one of Britain’s North American colonies received the common law by the mid-eighteenth century, the reception assumed different forms in different colonies. Local interests retained significant power everywhere and used that power to preserve divergent, customary patterns of law that had arisen in the seventeenth century.

This book provides an exposition of company law from a comparative perspective. It analyses important policy issues in the area of company law, including the emergence and nature of the business corporation, EU company law, incorporation and corporate representation, agency problems in the firm, rights of stakeholders and shareholders, minority shareholder protection in corporate control transactions, legal capital, and piercing the corporate veil, as well as corporate insolvency and restructuring law. The book’s main focus is the law of public and private companies in the common law sense (the law of partnerships is referred to and taken into account as necessary). The book’s analysis encompasses the corporate laws of the US, the UK, Germany, and France, as well as the legislative measures adopted by the EU and the relevant case law of the Court of Justice of the EU. It includes edited and, where necessary, translated extracts from leading company case law. The cases are discussed and interpreted in the context of the national and European regulatory frameworks and in light of economic and legal theory, as well as legal history.

This book is the culmination of a project of twenty leading British and American contract scholars, and one UK Supreme Court Justice, to examine comparatively a number of topics from UK and US contract law. It compares and contrasts in detail their respective national laws of contract in areas ranging across contract theory and structure, formation of contract, policing of contractual content, interpretation of contracts, damages, sales law, agency, and consumer law reform. Through pairings of the British and American authors, as well as observations of the editors on each of the topics covered, comparative analysis is used to illuminate the contract law of each country, and in so doing to make a valuable contribution to a neglected field of legal scholarship. There is coverage of the contract law of the United States, England, and Scotland, as well as of model law instruments such as the Principles of European Contract Law and the Restatement (Second) of Contracts.

Courts in different jurisdictions face similar human rights questions. Does the death penalty breach human rights? Does freedom of speech include racist speech? Is there a right to health? This book uses the prism of comparative law to examine the fascinating ways in which these difficult questions are decided. On the one hand, the shared language of human rights suggests that there should be similar solutions to comparable problems. On the other hand, there are important differences. Constitutional texts are worded differently; courts have differing relationships with the legislature; and there are divergences in socio-economic development, politics, and history. Nevertheless, there is a growing transnational conversation between courts, with cases in one jurisdiction being cited in others. Part I (Chapters 1–5) outlines the cross-cutting themes which shape the ways judges respond to challenging human rights issues. Chapters 1–5 examine when it is legitimate to refer to foreign materials; how universality and cultural relativity are balanced in human rights law; the appropriate role of courts in adjudicating human rights in a democracy; and the principles judges use to interpret human rights texts. The book is unusual in transcending the distinction between socio-economic rights and civil and political rights. Part II (Chapters 6–12) applies these cross-cutting themes to comparing human rights law in five jurisdictions. These chapters focus on seven particularly challenging issues: the death penalty, abortion, housing, health, speech, education, and religion, with the aim of inspiring further comparative examination of other pressing human rights issues. It is primarily court-centred, but also examines courts’ drawbacks.

By definition, international law, once agreed upon and consented to, applies to all parties equally. It is perhaps the one area of law where cross-country comparison seems inappropriate, because all parties are governed by the same rules. However, as this book explains, states sometimes adhere to similar, and other times adopt different, interpretations of the same international norms and standards. International legal rules are not a monolithic whole, but are the basis for ongoing contestation, in which states set forth competing interpretations. International norms are interpreted and redefined by national executives, legislatures, and judiciaries. These varying and evolving interpretations can, in turn, change and impact the international rules themselves. These similarities and differences make for an important, but thus far largely unexamined, object of comparison. This is the premise for this book, and for what the editors call “comparative international law.” This book achieves three goals. The first is to show that international law is not a monolith. The second is to map the cross-country similarities and differences in international legal norms in different fields of international law, as well as their application and interpretation with regards to geographic differences. The third is to make a first and preliminary attempt to explain these differences. The book’s contributors include leading international law and comparative law scholars with diverse backgrounds, experience, and perspectives. It is organized into three broad thematic sections, exploring: conceptual matters, domestic institutions and comparative international law, and comparing approaches across issue-areas.

This translation of Rechtsvergleichung offers a critical introduction to the central tenets of comparative legal scholarship. The first part of the book is dedicated to general aspects of comparative law. The controversial question of methods, in particular, is addressed by explaining and discussing different approaches, and by developing a contextual approach that seeks to engage with real-world issues and give a practitioner’s angle on contemporary comparative legal scholarship. The second part of the book offers a detailed treatment of the major legal contexts across the globe, including common law, civil law systems (based on Germany and France as well as case studies of Eastern Europe, Scandinavia, and Latin America, among others), the African context (with an emphasis on customary law), Asian jurisdictions, Islamic law and law in Islamic countries (plus a brief treatment of Jewish law and canon law), and transnational contexts (public international law, European Union law, and lex mercatoria). The book offers a coherent treatment of global legal systems that aims not only to describe their varying norms and legal institutions but to propose a better way of seeking to understand how the overall context of legal systems influences legal thinking and legal practice.

Comparative study has emerged as the new frontier of constitutional law scholarship as well as an important aspect of constitutional adjudication. Increasingly, jurists, scholars, and constitution drafters worldwide accept that “we are all comparativists now.” And yet, despite this tremendous renaissance, the “comparative” aspect, as a method and a project, remains under-theorized and blurry. Fundamental questions concerning the very meaning and purpose of comparative constitutional inquiry, and how it is to be undertaken, are seldom asked, let alone answered. The author addresses this gap by charting the intellectual history of constitutional thought and the analytical underpinnings of comparative constitutional inquiry, probing the various types, aims, epistemology, and methodologies of engagement with the constitutive laws of others through the ages, and exploring how and why comparative constitutional inquiry has been and ought to be more extensively pursued by academics and jurists worldwide. Through extensive exploration of comparative constitutional endeavors past and present, near and far, the author shows how attitudes toward engagement with the constitutive laws of others reflect tensions between particularism and universalism as well as competing visions of who “we” are as a political community. Drawing on insights from social theory, religion, history, political science, and public law, the author argues for an interdisciplinary approach to the study of comparative constitutionalism that is methodologically and substantively preferable to merely doctrinal accounts. It is contended that the future of comparative constitutional studies lies in relaxing the sharp divide between constitutional law and the social sciences.

The last two decades have witnessed an exponential growth in debates on the use of foreign law by courts. Judges are said to increasingly rely on inspiration from outside of their national legal systems for solving purely domestic cases. This book puts similar claims to the test in relation to the highest national jurisdictions, i.e. supreme and constitutional courts, in Europe today. How often and why do judges choose to draw inspiration from foreign materials in solving domestic cases? The book addresses these questions from the empirical as well as the theoretical angle. Empirically, the genuine use of comparative arguments by the national highest courts in five European jurisdictions is examined: England and Wales, France, Germany, Czech Republic, and Slovakia. On the basis of comparative discussion of the practice and its national theoretical underpinning in these and partially also in other European systems, an overreaching theoretical framework for the current judicial use of comparative arguments is offered.

This book, the second of two volumes, considers the rules which apply where a person dies either without leaving a valid will, or leaving a will which fails to dispose of all of the person's assets. Among the questions considered are the following. What is the nature of the rules for the disposal of the deceased's assets? Are they mechanical or is there an element of discretion? Are particular types of property dealt with in particular ways? Is there entitlement to individual assets (as opposed to money)? Do the rules operate a parentelic system or a system of some other kind? Are spouses treated more favourably than children? What provision is made for extra-marital children, for adopted children, for step-children? Does cohabitation give rise to entitlement? How are same-sex couples treated? Broader questions also arise of a historical and comparative nature. Where, for example, do the rules in intestate succession come from in particular legal systems? Have they been influenced by the rules in other countries? How are the rules explained and how are they justified? To what extent have they changed over time? What are the long-term trends? And finally, are the rules satisfactory, and is there pressure for their reform? As in the previous volume, the focus is on Europe, and on countries which have been influenced by the European experience such as Australia, New Zealand, South Africa, the United States of America, Quebec, and the countries of Latin America. A further chapter is devoted to Islamic Law. The book opens with a chapter on Roman law and concludes with an assessment of the overall development of the law in the countries surveyed, and with some wider reflections on the nature and purpose of the law of intestate succession.

This book presents a new stage in the contributions of the BRICS countries (Brazil, Russia, India, China, and South Africa) to the development of Competition Law and policy. These countries have significant influence in their respective regions and in the world. The changing global environment means greater political and economic role for the BRICS and other emerging countries. BRICS countries are expected to contribute nearly half of all global gross domestic product growth by 2020. For more than a century, the path of Competition Law has been defined by the developed and industrialized countries of the world. Much later, developing countries and emerging economies came on the scene. They experience many of the old competition problems, but they also experience new problems, and experience even the old problems differently. Where are the fora to talk about Competition Law and policy fit for developing and emerging economies? The contributors in this book are well-known academic and practising economists and lawyers from both developed and developing countries. The chapters begin with a brief introduction of the topic, followed by a critical discussion and a conclusion. Accordingly, each chapter is organized around a central argument made by its author(s) in relation to the issue or case study discussed. These arguments are thoughtful, precise, and very different from each another. Each chapter is written to be a valuable freestanding contribution to our collective wisdom. The set of case studies as a whole helps to build a collection of different perspectives on competition policy.