Showing papers on "Common law published in 1999"

Protection of Minority Shareholder Interests, Cross-listings in the United States, and Subsequent Equity Offerings

Abstract: This paper examines the view that non-U.S. firms cross-list in the United States to increase protection of their minority shareholders. We find that firms from French Civil Law countries, which have relatively weak protections for minority shareholders, are more likely to cross-list on an organized exchange than firms from English Common Law countries. Since listing on an organized exchange subjects the firm to U.S. securities law and requires the firm to conform to U.S. GAAP while listing a firm OTC or 144a does not, this finding is consistent with the view that firms from French Civil Law countries attempt to protect their minority shareholders by cross-listing. Subsequent to cross-listing in the U.S., equity offerings increase from firms from all countries, with larger post-cross-listing offerings from countries with lower shareholder protections. Equity offerings increase both in the U.S. and outside the U.S. Finally there is an association between shareholder protection in the home country and the location (U.S. or non-U.S.) of the equity offering, with non-U.S. offering more likely from countries with few shareholder protections. Overall, the pattern of cross-listing and equity offerings we observe in this paper suggests that bonding occurs when we expect it to be important, and that a significant reason for cross-listing in the U.S. is the legal protections of U.S. securities laws that are associated with the cross-listing.

The Effect of International Institutional Factors on Properties of Accounting Earnings

Abstract: International differences in the demand for accounting income predictably affect the way it incorporates economic income (dividend-adjusted change in market value) over time. We characterize the "shareholder" and "stakeholder" corporate governance models of common and code law countries respectively as resolving information asymmetry by public disclosure and private communication. Also, code law directly links accounting income to current payouts (to employees, managers, shareholders and governments). Consequently, code law accounting income is less timely, particularly in incorporating economic losses. Regulation, taxation and litigation cause variation among common law countries. The results have implications for security analysts, standard-setters, regulators, and corporate governance.

The Future as History: The Prospects for Global Convergence in Corporate Governance and its Implications

Abstract: Comparative research has shown that, even at the level of the largest firms, corporate ownership structure tends to be highly concentrated, with dispersed ownership structures characterizing only the Anglo/American context. What explains these national boundaries between dispersed and concentrated ownership structures? Earlier in this decade, several authors (most notably, Mark Roe) proposed "political" theories of corporate finance under which dispersed ownership was viewed as largely the result (in the U.S.) of regulatory constraints imposed on the development of financial intermediaries. Under this view, a deep-rooted American political ideology disfavored concentrated financial power, with the alleged result that the Berle/Means model of the firm (with its characteristic "separation of ownership and control") became dominant in the U.S. (but not elsewhere). More recently, economists working on the privatization of transitional economies have focused on the difficulties in establishing viable securities markets. Based on survey data, they have concluded that common law regimes vastly outperform civil law regimes in fostering the development of equity markets. Even if this research is still at a preliminary stage, this data suggests an alternative "legal" hypothesis for the observed dichotomy between concentrated and dispersed ownership: namely, only those legal systems that provide significant protections for minority shareholders can sustain active equity markets. This "legal" hypothesis is the mirror image of the earlier noted "political" theory of corporate finance: under the "legal" hypothesis, dispersed ownership evidences not the overregulation of institutional investors, but the law?s success in encouraging investors to accept the status of minority owners. Similarly, financial intermediaries fail to grow to the scale observed in Japan and Germany, because individuals do not need to rely upon them as collective investment vehicles. These two contrasting theories yield very different predictions about the likelihood that globalization will produce significant convergence in corporate governance. Emphasizing the inertial impact of path dependency, proponents of the former political theory have focused on the barriers to formal convergence and been skeptical of the prospects for legislative change. Proponents of the "legal" hypothesis have yet advanced no logical corollary to their arguments, but this article examines an alternative and more likely route to significance convergence in corporate governance: namely, functional convergence attained, first, through the migration of foreign issuers to the U.S. securities markets and, second, through international harmonization of securities regulation and disclosure standards. Empirically, the migration of foreign issuers to the U.S. markets has accelerated in this decade, and this article examines several hypotheses for this trend, including (i) the possibility that a U.S. listing is a bonding mechanism by which issuers assure minority shareholders that they will not be exploited; (2) the existence of network externalities associated with securities exchange that attract issuers even in the face of high regulatory costs; and (3) the possibility that the "strong" position of management in the Berle/Means corporate structure protects minority shareholders from the danger that the subsequent formation of a control block will permit a new controlling shareholder to expropriate value from them. Finally, this article argues that convergence in corporate governance will occur not at the level of corporate laws, but at the level of securities regulation. In particular, it emphasizes the critical, but often overlooked, role for securities regulation in reducing agency costs. In this regard, developments in the United States may foreshadow future international corporate convergence, as, it is argued, the predominance of federal securities law has largely overshadowed variations in state corporate laws and rendered unimportant the competition among American states for corporate charters. Similarly, on the international level, securities harmonization may trivialize path dependent variations in national law.

Privatization and Corporate Governance: The Lessons from Securities Market Failure

Abstract: This paper analyzes the comparative experiences of Poland and the Czech Republic with voucher privatization. Because of a number of similarities between these two transitional economies, it finds their comparative experience to provide a useful natural experiment, with the critical distinguishing variable being their different approaches to regulatory controls. However, while their experiences have been very different, their substantive corporate law was very similar. The true locus of regulatory differences appears then to have been the area of securities market regulation, where their approaches differed dramatically. Re-examining the work of LaPorta, Lopez-de-Silanos, Shleifer & Vishny, this paper submits that (1) the homogenity of both common law systems and civil law systems has been overstated; (2) common law systems in particular differ widely in terms of substantive corporate law, but have converged functionally at the level of securities regulation; (3) dispersed ownership will likely not persist under civil law systems that contemplate concentrated ownership and hence do not address or discourage rent-seeking corporate control contests or other forms of expropriation from minority shareholders; and (4) such "winner-take-all" control contests are probably most feasibly addressed through "self-enforcing" structural protections, such as (following the Polish model) the transitional use of state-created controlling shareholders. Reformulating the thesis originally advanced by LaPorta, et al., this article argues that civil law systems are not inherently unprotective of minority shareholders, but rather protect shareholders only against the forms of abuse that were well-known in systems of concentrated ownership (i.e., typically, abuse by a dominating parent) and not against the abuses that typically characterize systems of dispersed ownership (i.e., managerial expropriation and theft of the control premium). Ultimately, there is a conceptual mismatch between civil law systems and the dispersed ownership created by voucher privatization.

Law and empire in late antiquity

Abstract: 1. The law of Late Antiquity 2. Making the law 3. The construction of authority 4. The efficacy of law 5. In court 6. Crime and the problem of pain 7. Punishment 8. The corrupt judge 9. Dispute settlement I: out of court 10. Dispute settlement II: episcopalis audientia Conclusion.

Privatization and Corporate Governance: The Lessons from Securities Market Failure

Abstract: 1. INTRODUCTION: CORPORATE GOVERNANCE REDISCOVERED A specter is haunting the neo-classical theory of the corporation.1 It is the specter that law matters-that a positive theory of the fmn is incomplete unless it incorporates and explains the role of legal variables. Recent research on corporate governance has found systematic differences among nations in ownership concentration, capital market development, the value of voting rights, and the use of external finance.2 More importantly, these differences seem to correlate closely with the strength of the legal protections given minority investors.3 In turn, this level of legal protection seems to depend upon, and vary systematically with, the nature and origins of each nation's legal system. In particular, common law legal systems seem to vastly outperform civil law legal systems (and particularly French civil law systems) in providing investor protections and, in turn, encouraging capital market growth and ownership dispersion. Most importantly, this new scholarship has found that the size, depth, and liquidity of securities markets correlates directly with the quality of the legal protections given to shareholders.4 In consequence, because the nature and quality of legal protection differs widely across nations, the corporate world subdivides today into rival systems of dispersed ownership and concentrated ownership, with different structures of corporate governance characterizing each.5 A paradigm shift is now underway in the manner in which financial economics views corporate governance, with the new scholarship emphasizing both the centrality of legal protections for minority shareholders and the possibility that regulation can outperform private contracting.6 Although this Article recognizes the importance of this transition, it is far more skeptical about whether this new scholarship has identified the critical elements that have given the "common law" nations a comparative advantage over the "civil law" world. Here, a mystery remains, One possibility is that substantive differences in corporate law may matter far less than differences in enforcement practice. In turn, enforcement may depend more upon the strength of the incentives to assert legal remedies than upon the availability of legal remedies themselves. Even this hypothesis, however, oversimplifies, because once one examines closely the differences among various systems of corporate governance, the assumed homogeneity of even common law legal systems begins to break down. Another possibility is that differences in substantive corporate law are less important than the differences in the level of regulation that different nations impose on their securities markets.7 Under this latter hypothesis, the focus shifts from the minority shareholder to the investor generally. The critical question becomes: Does local law establish adequate disclosure and market transparency standards, restrict insider trading, and regulate takeovers and corporate control contests adequately? If it does, then arguably the exposure of shareholders to unfair self-dealing transactions at the corporate level may have only a second-level significance. This Article finds considerable evidence in the Polish and Czech experiences to be consistent with this hypothesis. Inadequate securities regulation plays the primary role in explaining privatization failures, but the Article also finds some evidence to suggest that deficiencies in Czech corporate law contributed to the systematic looting of Czech companies by their controlling shareholders. Even if the critical protections upon which minority shareholders depend have not yet been clearly identified, the available data still strongly support the interpretation that law matters; that in some not yet well-understood manner, certain legal systems have encouraged dispersed ownership, while other systems have rendered it an unstable and transient phenomenon. This new emphasis on legal variables has potentially subversive implications for at least some aspects of neo-classical corporate finance theory. …

Getting Real: Stakeholder Theory, Managerial Practice, and the General Irrelevance of Fiduciary Duties Owed to Shareholders

Abstract: Stakeholder theorists have generally misunderstood the nature and ramifications of the fiduciary responsibilities that corporate directors owe their stockholders. This fiduciary duty requires the exercise of care, loyalty, and honesty with regard to the financial interests of stockholders. Such obligations do not conflict with the normative goals of stakeholder theory, nor, after a century of case law that includes Dodge Bros. v. Ford, do fiduciary responsibilities owed shareholders prevent managerial policies that are generous or sensitive to other corporate stakeholders. The common law recognizes a multitude of legal relationships between various corporate constituents, and fiduciary duties are only a subset of the obligations that arise from these relationships. This article argues that statute and case law can bring comparable legal protection to constituents other than stockholders, and suggests ways that these protections might be further strengthened. Implications for management education are also discussed.

Comparative law in a changing world

Abstract: This is a contemporary introduction to comparative law, tracing its history, aims and functions and increasing relevance in a rapidly changing world. Topics covered include the origins of civil law and common law traditions, non-Western legal systems and the implications of the EC law as a supranational legal system. It also sharts the decline of the socialist legal tradition in Eastern Europe, the unification of Germany, and the emergence of the new Russian Federation. A comparative study of statutory interpretations and approches to case law is included.

Deconstructing Privacy: And Putting It Back Together Again

Abstract: The growth of the law of privacy has taken chaotic forms Sometimes claims for privacy work in harmony with classical liberal ideals and on other occasions it works against them This paper seeks to examine the strength of various claims to privacy within a framework that first asks whether, and if so how, privacy interests may be protected under the framework I defended in Simple Rules for a Complex World (Harvard University Press 1995) The first stage asks the extent to which privacy interests are protected by libertarian rules directed toward the protection of autonomy, property, and voluntary exchange from the use of force and fraud It then examines how privacy interests can be usefully protected by the relaxation of these rules in ways that work to the long-term advantage of all individuals It then notes that protecting certain forms of privacy (such as that against eavesdropping) fall within this category while other claims for privacy (such as shielding medical records from employers and insurers) do not Privacy issues can thus be sorted out by the same conceptual devices used to evaluate traditional common law claims in torts and contracts

Japanese Law: An Economic Approach

Abstract: In this introduction to Japanese law, J. Mark Ramseyer and Minoru Nakazato present an economic approach to the law, to challenge commonly held ideas about the law. Where many studies assume that Japanese law differs fundamentally from law in the United States, this work shows the essential similarity between the two. Arguing against the idea that law plays only a trivial role in Japan or is culturally determined, the authors demonstrate that standard economic models in fact explain fundamental facets of the way Japanese manipulate the law. This study covers almost all the basic areas of Japanese law: property, contracts, torts, corporate, civil procedure, criminal law, administrative procedure, and tax. Ramseyer and Nakazato draw liberally from case law, and after outlining legal doctrine, they use economic theory and empirical data to sketch the implications the law poses for human behaviour.

Southern Slavery and the Law, 1619-1860

Abstract: This volume is the first comprehensive history of the evolving relationship between American slavery and the law from colonial times to the Civil War. As Thomas Morris clearly shows, racial slavery came to the English colonies as an institution without strict legal definitions or guidelines. Specifically, he demonstrates that there was no coherent body of law that dealt solely with slaves. Instead, more general legal rules concerning inheritance, mortgages, and transfers of property coexisted with laws pertaining only to slaves. According to Morris, southern lawmakers and judges struggled to reconcile a social order based on slavery with existing English common law (or, in Louisiana, with continental civil law.) Because much was left to local interpretation, laws varied between and even within states. In addition, legal doctrine often differed from local practice. And, as Morris reveals, in the decades leading up to the Civil War, tensions mounted between the legal culture of racial slavery and the competing demands of capitalism and evangelical Christianity. |A comprehensive history of the evolving relationship between American slavery and the law from colonial times to the Civil War. (Please see cloth edition, published 2/96).

The defence of superior orders: the statute of International Criminal Court versus customary international law

Abstract: This paper endeavours to critically assess Article 33 of the Statute of the International Criminal Court on superior orders by comparing it with customary international law. The author notes that case law and the legal literature have never clarified the content of the customary rule on this matter. Two apparently conflicting approaches have emerged. The conditional liability approach, generally adopted by national legal systems, admits the plea as a complete defence, unless the subordinate knew or should have known the illegality of the order or unless the order was manifestly illegal. By contrast, relevant international instruments prior to the Rome Statute have invariably taken the absolute liability approach, according to which obedience to orders is never a defence. The author contends that close scrutiny of national legislation and case law shows that the divergences in international practice are more apparent than real and that the customary rule on superior orders upholds the absolute liability approach. By adopting the conditional liability approach with regard to war crimes, Article 33 of the Rome Statute has departed from customary international law without any well-grounded reasons. This departure is all the more questionable since it is basically inconsistent with the codification of war crimes effected through Article 8 of the Rome Statute. This Article lays down an exhaustive list of war crimes covering acts that are unquestionably and blatantly criminal. It would therefore appear to be impossible to claim that orders to perpetrate any of those acts are not manifestly unlawful or that subordinates could not recognize their illegality.

Recrafting the rule of law : the limits of legal order

Abstract: Recrafting the rule of law, David Dyzenhaus. Part 1 Law under stress: a defence of Radbruch's formula, Robert Alexy the interpretation and invalidity of unjust laws, Julian Rivers legality without a constitution - South Africa in the 1980s, Richard L. Abel delivering positivism from evil, Anton Fagan legal positivism and American slave law - the case of Chief Justice Shaw, Anthony J. Sebok the rule of law and judicial review - reflections on the Israeli constitutional revolution, Alon Harel. Part 2 Reconceiving the rule of law: rhetoric and the rule of law, Neil MacCormick Utopia and the rule of law, Christine Sypnowich the rule of law revisited - democracy and courts, Allan C. Hutchinson. Part 3 The limits of legal order: parks, dogs and the rule of law - post-communist reflections, Andras Sajo globalization and the fate of law, William E. Scheuerman supranational challenges to the rule of law - the case of the European Union, John P. McCormick constructing law's mandate, Kenneth Winston administrative policy-making - rule of law or bureaucracy?, Henry S. Richardson the real democracy problem in administrative law, Jody Freeman.

International law and sustainable development : past achievements and future challenges

Abstract: 1. Introduction 2. Sustainable Development and Unsustainable Arguments 3. Sustainable Development: Treaty, Custom and the Cross-Fertilization of International Law 4. Codification of International Environmental Law and the International Law Commission: Injurious Consequences Revisited 5. Natural Resources in the Case Law of the International Court 6. The Development of the Legal Regime of High Seas Fisheries 7. International Fisheries Law Since Rio: The Continued Rise of the Precautionary Principle 8. Towards Long Term Sustainable Use: Some Recent Developments in the Legal Regime of Fisheries 9. Protection of Ecosystems under International Law: Lessons from Antarctica 10. Sustaining Small Cetaceans: A Preliminary Evaluation of the ASCOBANS and ACCOBAMS Agreements 11. The Settlement of Disputes According to the Straddling Stocks Agreement of 1995 12. The Law of the Sea Convention and Agenda 21: Marine Environment Implications 13. The International Legal Regime for Protection and Preservation of the Marine Environment from Land-based Sources of Pollution 14. Port States and Environmental Protection 15. Liability for Damage to the Marine Environment 16. The Challenge of Implementation: Some Concluding Notes

Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation

Abstract: The use of comparative constitutional materials in constitutional interpretation – comparative constitutional interpretation – has emerged as a central component of contemporary constitutional practice. This article identifies three distinct modes of comparative constitutional interpretation (universalist, genealogical, and dialogical) which offer courts the interpretive resources to explain why comparative law should count. Because of their centralizing role in legitimizing and validating the exercise of public power, courts are under an obligation to engage in a process of justification for their decisions. Through an examination of the case law of the Constitutional Court of South Africa and the Supreme Court of Canada, the author discusses the three ways that justification occurs within comparative constitutional jurisprudence and the distinct normative justification for the use of comparative law that each offers. The author finally assesses the scope, effects, and the legitimacy of the normative claims of each mode.

Law, capitalism and power in Asia : the rule of law and legal institutions

Abstract: A challenging and provocative book that contests the liberal assumption that the rule of law will go hand in hand with a transition to market-based economies and even democracy in East Asia. Using case studies from Hong Kong, China, Indonesia, Malaysia, Taiwan, Japan and Vietnam, the authors argue that the rule of law is in fact more likely to provide political elites with the means closely to control civil society. It is essential, therefore, to locate conceptions of judicial independence and the rule of law more generally within the ideological vocabulary of the state.

The Human Rights Act, ‘Horizontal Effect’ and the Common Law: a Bang or a Whimper?

Abstract: The extent to which the Human Rights Act (HRA) will have any 'horizontal effect', that is, impact on the legal relations between private juristic persons, has already been recognised as perhaps its most problematic aspect.' It is also of course an issue of potentially great importance. If the more maximalist interpretations of the Act's horizontal effect so far put forward are accepted by the UK judiciary, the effect on private common law2 could be drastic: as La Forest J put it in relation to the same issue under the Canadian Charter in the seminal case of Dolphin Delivery,3 whole areas of settled private law would have to be re-opened.4 In the literature this debate has so far generated, a consensus seems to have emerged that the inclusion of the courts within the definition of public authorities which are bound not to act incompatibly with Convention rights5 is crucial in this regard. It is the contention of this article that the meaning of this admittedly key provision has so far been subject to insufficiently detailed analysis, nor considered in the context of the Act as a whole. This is partly because, as will be suggested, its meaning has

Chinese law : towards an understanding of Chinese law, its nature, and development

Abstract: Acknowledgments. Introduction. 1. Legal Culture, State Orthodoxy and the Modernisation of Law. 2. Experience of Law in the PRC. 3. Constitutional Law. 4. Sources of Law and Law-Making. 5. Administrative Law. 6. Criminal Law. 7. Criminal Procedure Law. 8. Civil Law. 9. Family Law. 10. Contract Law. 11. Law on Business Entities. 12. Foreign Trade and Investment Law. Conclusions and Future Prospects. Selected Bibliography. Index.

The books of the common law

Abstract: This chapter deals with several aspects of common law during the medieval period in England such as law libraries, law cases and readings, law books and practice manuals, the law book trade including press and printing, and the legal profession itself. There were no common-law libraries comparable with those of the universities or large monasteries. The Inns of Court had nascent libraries around 1500, but few books in them, not all legal. Lawyers went on reporting current cases in manuscript, and some collections reaching back into the 1530s and 1540s were printed in later times. The first requirement for any common lawyer was a knowledge of the writs and forms of action whereby justice was distributed through the royal courts. Precedents of conveyancing and pleading were made by lawyers for their own use, the former largely by lowly practitioners, the latter (in the form of Latin books of entries) by prothonotaries and clerks.

The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine

Abstract: 1. Mandatory Palestine: the enigma of the missing colonial state 2. Whose tradition?: imageries of the past in Hebrew law 3. State law and communal justice 4. Celebrating authenticity and practising hybridity 5. Nationalism as a disciplinary regime 6. Lawyering the nation 7. Nation-building and the containment of legality 8. Dead law and statism: a suggested lesson.

Common Values and the Public-Private Divide

Abstract: Preface Table of statutes List of cases 1. Public law, private law: problematic concepts 2. Democracy, power and its control 3. The values of public and private law 4. Public law 1: O'Reilly v Mackman 5. Public law 2: interests, power and democracy 6. The law of relationships 1: the individual and the State, and the employment relationship 7. The law of relationships 2: family relationships 8. Private law 1: tort, contract and equity 9. Private law 2: public policy and the public private divide 10. The Human Rights Act, Europe and the public private divide 11. 'There is no public/private divide' 12. Towards democracy and citizenship in public and private law annex A comparison: the Scottish approach.

'Changing traditions to meet current altering conditions' : Customary law, african courts and the rejection of codification in Kenya, 1930-60

Abstract: Scholars have argued that colonial states in British Africa codified previously fluid customary law, making it impervious to change. In Kenya, by contrast, administrators struggled against codification, from at least the I920s but with increasing ardor from the 1940s, for two broad reasons. First, they believed codification crystallized the law, preventing changes necessary in a period of rapid economic and social development. Through continual alteration of a fluid body of customary law, administrators could try to guide these changes and keep a firm hold over African life. Second, codification threatened to empower the judiciary in their ongoing struggles with the administration over the control of African dispute resolution. Keeping customary law unwritten helped exclude the judiciary from intra-African disputes, since without written codes only administrators (who 'knew' Africans) could decide customary law cases. In actual practice, the identification and use of customary law remained fluid. Administrators believed customary law lay in the shifting realm of 'public opinion', and sought details of the law in this ever evolving arena. Even when Europeans and Africans put customary law to paper, a review of court transcripts shows that African court elders continued to employ law situationally. The Kenya case suggests that while administrators and senior men did hope to use the law to resist challenges from women and juniors, they did not do so via codes of unalterable and unquestionable customary law. This also points out some of the real limits on colonial power. Rather than administrators using customary law to guide development, Africans made their own interpretations of customary law, either in their 'public opinion' or in the courts, the decisions of which administrators knew little.

Introduction to the Law and Legal System of the United States

Abstract: This text provides an introduction to U.S. law. It is intended for law students, lawyers, and legal scholars from foreign countries; U.S. graduate and undergraduate college students; members of the general reading public in the United States; and anyone who seeks a """"big picture"""" of the law and legal system. Not a casebook, it explains the major substantive areas of the law in narrative form with citations to cases and sources for additional detail. In addition to covering the principal substantive areas of the law, the book has chapters on: essential basic history and governmental structure necessary to an understanding of the legal system; the legal profession; the theory and practice of the adversary system of justice; and statutory interpretation and case law reasoning.

["Race," Rights & the Law in the Supreme Court of Canada: Historical Case Studies]

Abstract: These fine books on aspects of law and criminality support the platitude that crime does not pay -- except for lawyers, criminologists and insurance companies. Canadian criminals put in more time in jail per dollar stolen in other countries, although these statistics predate the conviction of Alan Eagleson. Another statistic, even less likely to stir patriotic pride, is that Canadian youth, as Bernard Schissel points out, have the highest per capita rate of incarceration of any country in the world.If crime rates in Canada have dropped off in recent years, corresponding to the diminishing ratio of youth in the Canadian population, we still have a lot more lawyers. Prior to the Charter of Rights and Freedoms, Canadians had less than half as many lawyers per capita as the Americans but now we approach two-thirds of the American ratio (Law and Markets 77-81) creating "the danger of supply-driven and socially harmful increases in litigation" (85). Virtually, all of the contributors to Law and Markets bemoan Canada's increasing litigiousness; none defend the very quality that brought one of Canada's most honoured citizens to jail. The Fraser Institute has brought together an interesting volume that seems to bear the message of Adam Egoyan's movie The Sweet Hereafter; namely, that lawyers as ambulance-chasers are bad news. Law and Markets is concerned not with corporate criminality but with the prospect that enterprising lawyers, instigating class action suits on contingency fees, will be able to dupe civil juries, and cut into profit margins. Indeed, Richard Hazelton, the CEO of Dow Corning which filed for bankruptcy because of the silicone breast implant suit, tells a cautionary tale for Canadian businesspeople.Contributors point out that jurors lack competence to assess the scientific and technical evidence about toxic emissions, risks to health, the relationship of causality and legal accountability; prejudices about dioxin spills may skew assessment of the personal injury caused by the spillage. The one exception to the anti-litigation view of the 17 contributors to Law and Markets is Mark Mattson, an environmental litigator, who argues convincingly that the Canadian Environmental Protection Act needs radical revision or abolition. Mattson argues that the federal government should either enforce environmental standards or leave private litigators like himself to engage in civil ligation against environmental polluters. Mattson recommends that public interest groups and their lawyers split the fine levied on the offending corporations or municipalities (135). While Mattson may conform to the Fraser Institute's policy on deregulation -- "It is government intervention that stands in the way of a public right to protect community resources" (136) -- his proposals would encourage litigation, diminish shareholder profits and raise citizens' taxes. If the aim of Canadian economic regulation is, as Konrad von Finckenstein puts it, "user-friendly regulation," we are led to conclude that deregulation and user-friendly regulation are not the same thing. If the conflicting interests of Richard Hazelton and Mark Mattson reveal the current contradictions of capitalism, we might also note that the provinces geographically and ideologically closest to the Fraser Institute (British Columbia and Alberta) are the most litigious, while New Brunswick are Newfoundland are least litigious (158-9).An exciting challenge for the Fraser Institute would be to take on the human rights legislation that emerged after the Second World War, arising from a combination of anti-Nazi principle, Keynesian welfarism and acceptance of wartime control of goods and services in the public interest. Since human rights codes abridge several common law rights, of property and contract, specifically the right of business to discriminate in favour of preferred employees, buyers, tenants and customers, the Institute's views on James Walker's compelling account of the role of human rights legislation in limiting racism in the Canadian marketplace would be illuminating. …

Making Sense of Sentencing

Abstract: Law, Crime, Punishment and SocietyGreg MarquisEds. Julian V. Roberts and David P. Cole. Toronto: University of Toronto Press, 1999. 363 pp.Legal studies in Canada are experiencing a golden age as articles, anthologies and monographs produced by academics trained in the 1980s and 1990s continue to appear. Nine books, nearly 50 authors and more than 2,000 pages of text and notes later, this reviewer is suffering from intellectual fatigue, but the type that comes from a good workout.In terms of Canada's legal history, the Osgoode Society has been the leading force for publication for two decades. As of 1999 it had produced more than three dozen monographs or collections of essays. Its most recent anthology is edited by G. Blaine Baker and Jim Phillips, law professors who are also noted legal historians. Essays in the History of Canadian Law VIII evolved out of a 1998 conference dedicated to pioneering legal scholar R.C.B. Risk. In the 1970s the American-trained Risk published on the relationship between law and the economy in nineteenth-century Ontario. Significantly, these essays did not appear in history publications, but in law journals. His work is largely unknown to most Canadian historians, but Risk has exerted an important influence on legal history scholars associated with law faculties. His stature is acknowledged by two scholars of international repute, Robert Gordon and David Sugarman, and his body of work and its effect are assessed in an insightful chapter by G. Blaine Baker.Most of the contributors to the Risk festschrift are involved with law schools, and the tone of most chapters tends towards classic legal history. Many of the contributions will challenge undergraduate students of history or criminal justice. Exceptions include Constance Backhouse's study of a racially motivated murder of a member of the Onyota'a:ka (Oneida) First Nation in 1902, a case study that underscores the lack of research on race and law in Canadian history. Hamar Foster's examination of Indian title in British Columbia and John McLaren's article on Chinese criminality in British Columbia from 1890 to 1920 also have broader appeal than mainstream legal history. White society "racialized" the Chinese not only through stereotypes, but through criminal law and law enforcement, especially in the areas of gambling, prostitution and opium smoking. McLaren indicates that although the Chinese in British Columbia were subjected to legal and bureaucratic racism, police harassment and informal discrimination, as a "despised minority" they also appealed to the rule of law and the courts for protection. On a more mundane level they utilized the civil courts for disputed commercial transactions. Because most criminal convictions against the Chinese were summary offences, it was rare for them to surface in appeal courts. Yet according to McLaren, appellate judges in British Columbia were guided by law, not racial prejudice, in many of their rulings involving the Chinese.Peter Oliver's chapter on the judiciary in the historiography of Upper Canada offers a counter-revisionist critique of recent interpretations that condemn the colonial elite's manipulation of the legal system under the constitution of 1791. For much of the twentieth century, conservative and "consensus" historians of Upper Canada regarded judges and other members of the legal elite in a positive manner and dismissed radical reformers such as William Lyon Mackenzie as "demagogues." Early nineteenth-century reformers had complained loudly over the administration of justice, particularly when it was abused by Tory magistrates and judges for political ends. In recent years, scholars examining treason, sedition, libel and a number of celebrated murder trials have portrayed the Tory elite as subverting the rule of law. According to Oliver, it was the appointed judges, not popular politicians, who pressed for law reform prior to the 1840s - reforms such as the notable diminution of capital offences in 1833, jail reform and prisoners' rights. …

Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation

Abstract: The use of comparative constitutional materials in constitutional interpretation – comparative constitutional interpretation – has emerged as a central component of contemporary constitutional practice. This article identifies three distinct modes of comparative constitutional interpretation (universalist, genealogical, and dialogical) which offer courts the interpretive resources to explain why comparative law should count. Because of their centralizing role in legitimizing and validating the exercise of public power, courts are under an obligation to engage in a process of justification for their decisions. Through an examination of the case law of the Constitutional Court of South Africa and the Supreme Court of Canada, the author discusses the three ways that justification occurs within comparative constitutional jurisprudence and the distinct normative justification for the use of comparative law that each offers. The author finally assesses the scope, effects, and the legitimacy of the normative claims of each mode.

Mixed jurisdictions: common law vs civil law (codified and uncodified) (Part II)

Abstract: I. – INTRODUCTION • II. – PLAN AND PURPOSE OF THE PAPER • III. – RELATED LEGAL ENTITIES AND THEIR DEFINITIONS – 1. Legal systems or legal orders; 2. Legal traditions or families; 3. Civil law; 4. Common law; 5. Statutory law; 6. Mixed legal systems; 7. Mixed jurisdictions; 8. Maritime law; 9. Legal traditions are also mixed • IV. – FORMS OF CIVIL LAW JURISDICTIONS AND HOW THEY DEVELOPED –

Europe’s New Jury Systems: The Cases of Spain and Russia

Abstract: The recent reintroduction of trial by jury in both Russia (1993) and Spain (1995) is interesting for two reasons. First, it is a surprising reversal in the longterm trend toward the elimination of the classic jury in favor of either courts composed exclusively of professional judges, or of “mixed courts” in which professional judges and lay assessors collegially decide all questions of fact, law, and sentence. Second, it raises the question whether the jury can act as a catalyst in the reform of Continental European criminal procedure, as it did during the nineteenth century in the wake of the French Revolution. The modern notions of procedural fairness in criminal procedure, which have gained general international recognition in national constitutions and international human rights conventions, have their origins in the following Anglo-American concepts, which developed in the context of an adversarial trial by jury: (l) the presumption of innocence, (2) the privilege against selfincrimination, (3) the equality of arms, (4) the right to a public and oral trial, (5) the accusatory principle, and (6) the judge’s independence from the executive or investigative agency. The classic separation of powers within the adversarial criminal process between a neutral judge, responsible for deciding questions of law and punishment, and a panel of lay persons responsible for questions of fact and guilt, also gave rise to common law rules of evidence. For instance, the separation of powers inspired the regulation of hearsay and relevance, the creation of exclusionary rules addressing excessively prejudicial and illegally gathered evidence, and the adoption of the principle of “free evaluation of the evidence” unfettered by formal rules of evidence. Important devel-