Showing papers on "Common law published in 2006"

Rethinking informed consent: the case for shared medical decision-making.

Abstract: In law, with rare exception such as legislative action, change is evolutionary and methodical Unlike biomedical science where a breakthrough can quickly lead to dramatic changes in medical practice, legal precedent is more adherent and must evolve either through the legislative process or on a court by court basis in case law Nevertheless, compelling evidence will pave the road to change within the law Health care research conducted over the last three decades has produced a body of empirical evidence that suggests an overhaul of our current legal standards of informed consent is overdue This article uses health services research to examine the fundamental assumptions of our current informed consent laws and propose legal reform Much has been written on how to bring the law to bear on medical practice in order to improve patient rights and protect physicians, but far less has been done to bring the practice of medicine to inform our legal standards Prior legal scholarship on informed consent has made arguments regarding reform from both ethical and legal perspectives; however, only a small few have incorporated clinical and health services research as well as ethical and legal principles to analyze informed consent

Legal origins, politics, and modern stock markets

Abstract: Legal origin--civil vs. common law--is said in much modern economic work to determine the strength of financial markets and the structure of corporate ownership, even in the world's richer nations. The main means are thought to lie in how investor protection and property protection connect to civil and common law legal origin. But, I show here, although stockholder protection, property rights, and their supporting legal institutions are quite important, legal origin is not their foundation. Modern politics is an alternative explanation for divergent ownership structures and the differing depths of securities markets in the world's richer nations. Some legislatures respect property and stock markets, instructing their regulators to promote financial markets; some do not. Brute facts of the twentieth century--the total devastation of many key nations, wrecking many of their prior institutions--predict modern postwar financial markets' strength well and tie closely to postwar divergences in politics and policies in the world's richest nations. Nearly every core civil law nation suffered military invasion and occupation in the twentieth century--the kinds of systemic shocks that destroy even strong institutions--while no core common law nation collapsed under that kind of catastrophe. The interests and ideologies that thereafter dominated in the world's richest nations and those nations' basic economic tasks (such as postwar reconstruction for many) varied over the last half century, and these differences in politics and tasks made one collection of the world's richer nations amenable to stock markets and another indifferent or antagonistic. These political economy ideas are better positioned than legal origin concepts to explain the differing importance of financial markets in the wealthy West. INTRODUCTION Do legal origins--common law vs. civil law--largely determine whether capital markets develop strongly? Many finance economists have concluded, in an explosion of influential articles in the past decade, that legal origin is indeed central. (1) Common law institutions effectively protect outside shareholders, it is said; civil law ones do not. This differing legal capacity to protect outside shareholders explains why some rich nations' capital markets are strong while others' are weak. The stakes aren't just academic. The developing world and international agencies are told that "transplanting the correct legal code (i.e., the common law) will enhance economic development." (2) This new legal origins view has in key circles elbowed aside the view that (1) economic function propels stock markets: stock markets develop when technology demands large enterprises and capital must be gathered from many sources, and this process works when (2) policymakers or private players build the institutions that support stock markets and (3) have enough political support that the polity does not attack finance. The last element--that national politics can confine policymakers' institution-building--has increasingly found theoretical support and evidence. Here I assess which approach--legal origin or political economy--is the better bet for future research and show how political and policy theories for the richer nations tie into systematic differences in how those nations experienced the turmoil of the early twentieth century. Differences in corporate finance in the wealthy West in the second half of the twentieth century could well be due more to the differing consequences of the earlier World Wars than to subtle differences between civil and common law. There's a powerful normative reason to get this assessment right. Many policymakers and some academics see strong financial markets as propelling economic development. (3) Thus, if we better understand what makes for strong financial markets, we can better understand how to engineer economic growth, or at least how to provide a necessary tool. …

Law as a means to an end : threat to the rule of law

Abstract: Introduction Part I. The Spread of Legal Instrumentalism: 1. Non-instrumental views of law 2. Changing society and common law in the nineteenth century 3. Nineteenth century legislation and legal profession 4. Instrumentalism of the legal realists 5. Twentieth century Supreme Court instrumentalism Part II. Contemporary Legal Instrumentalism: 6. Instrumentalism in legal academia in the 1970s 7. Instrumentalism in theories of law 8. Instrumentalism in the legal profession 9. Instrumentalism of cause litigation 10. Instrumentalism and the judiciary 11. Instrumentalism in legislation and administration Part III. Corroding the Rule of Law: 12. Collapse of higher law, deterioration of common good 13. The threat to legality Epilogue.

The New Law and Economic Development: A Critical Appraisal

Abstract: 1. An introduction: the third moment in law and development theory and the emergence of a new critical practice David M. Trubek and Alvaro Santos 2. Three globalizations of law and legal thought: 1850-2000 Duncan Kennedy 3. The 'Rule of Law' in development assistance: past, present, and future David M. Trubek 4. The 'Rule of Law', political choices, and development common sense David Kennedy 5. The dialectics of law and development Scott Newton 6. The future of law and development: second generation reforms and the incorporation of the social Kerry Rittich 7. The World Bank's uses of the 'Rule of Law' promise in economic development Alvaro Santos.

Two Concepts of the Margin of Appreciation

Abstract: The doctrine of the margin of appreciation that the European Court of Human Rights has developed in its case law has given rise to considerable criticism. In this article I draw a distinction between two different ways in which the Court has used the doctrine. The first one is in cases where the Court has to decide whether a particular interference with a Convention freedom is justified. In answering that question, the Court often uses the label 'margin of appreciation' without drawing on a substantive theory of rights that can justify the conclusion reached. The second use appears in cases where the Court refrains explicitly from employing a substantive test of human rights review on the basis that there is no consensus among Contracting States on the legal issue before it. My aim is to highlight the principles that can be used to justify each use of the doctrine, by locating human rights within broader issues in moral and political philosophy. Particular emphasis is placed on the distinction between reason-blocking and interest-based theories of rights as well as on the nature of the duties of the European Court, as a matter of international human rights law. Copyright © 2006 Oxford University Press.

The Constitution of Law: Legality in a Time of Emergency

Abstract: Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.

The Law of Other States

Abstract: The question whether courts should consult the laws of "other states" has produced intense controversy. But in some ways, this practice is entirely routine; within the United States, state courts regularly consult the decisions of other state courts in deciding on the common law, the interpretation of statutory law, and even on the meaning of state constitutions. A formal argument in defense of such consultation stems from the Condorcet Jury Theorem, which says that under certain conditions, a widespread practice, accepted by a number of independent actors, is highly likely to be right. It follows that if a large majority of states make a certain decision, there is good reason to believe that the decision is correct. For the Jury Theorem to apply, however, three conditions must be met: states must be making judgments based on private information; states must be relevantly similar; and states must be making decisions independently, rather than mimicking one another. An understanding of these conditions offers qualified support for the domestic practice of referring to the laws of other states, while also raising some questions about the Supreme Court's reference to the laws of other nations. It is possible, however, to set out the ingredients of an approach that high courts might follow, at least if we make certain assumptions about the legitimate sources of interpretation. Existing practice, at the domestic and international levels, suggests that many courts are now following an implicit Condorcetian logic.

The Commoning of the Common Law: The Renaissance Debate Over Printing English Law, 1520-1640

Abstract: Should the laws of England be printed? What were the likely effects of different strategies of dissemination? From the early sixteenth century through the English Revolution, these questions framed a debate among English lawyers over the propriety, advantages and risks of legal publication. Advocates of law printing envisioned national unity, godliness, and social harmony flowing from the legal press as readily as quartos and folios. Opponents, like the barrister William Hudson, warned of releasing the inner reasons and fictions of the law "to the multitude, who are apt to furnish themselves with shifts to cloak their wickedness, rather than to gain understanding to further the government of the Commonwealth." Participating in the expansion of law publishing underway in Elizabethan and early Stuart England, lawyers questioned print's impact on a profession heavily dependent on manuscripts and oral tradition and on a nation reading lawbooks without the interpretive conventions imbued by legal training. This essay pursues an intellectual history of law publishing. It explores lawyers' uncertain, divisive, and changing opinions about the effects and meanings of the legal press - their attacks, defenses, interpretations, aspirations, and warnings. The story unfolds in four sections. The first explores the initial justification of law printing offered in Henrician England, an echo of humanist and Protestant advocacy of textual dissemination as an agent of godly order. As it dissolved obscurantism, its friends claimed, the legal press solidified obedience to kingly authority against local, seigneurial, and ecclesiastical rivals. The second section discusses how an emerging group of latter sixteenth-century skeptics such as Hudson, the "anti-publicists," questioned these irenic predictions about the effects of lawbooks. Disorder, degeneracy, and disunion were their counter-prophesies. Absolutist and high church conformist suspicions of "publicity" inclined anti-publicists to disapprove of revealing the law's inner reasons and fictions. They wanted it to speak in a voice of command, not persuasion. The third section explores the contexts engendering the debate and making plausible the disputants' contrasting prophesies about the effects of lawbooks. Three interrelated developments stand out: the growing lay audience putting lawbooks to political uses and undermining the tacit identification of the reading public with the profession; increasing episcopal and absolutist suspicion of the unwitting dangers of licit printing; and the gradual realization within the profession of how print reshaped the control of knowledge (and hence of status and power) among themselves and between themselves and the nation. The fourth and final section reflects on how the controversy over law printing implicated a larger change in English legal culture: the "commoning" of the common law. In reaction to the anti-publicist critique, publicists helped further the gradual redefinition of the law as a national inheritance rather than a guild or royal possession. They defended popular right of access to the inner reasons of the law, valorized lay rather than royal or guild "ownership" of the law, and brought out the latent constitutionalist implications of legal printing. In the realm of perception, they helped transform the laws of the realm of England into the laws of Englishmen.

The Real Difference in Corporate Law Between the United States and Continental Europe: Distribution of Powers

Abstract: This article challenges some common assumptions in comparative corporate law. It argues that differences in the degree of shareholder protection between common law and civil law countries are often overestimated, while some more fundamental corporate law differences remain overlooked. A milestone publication in this regard is the article by La Porta et al. entitled Law and Finance. The authors introduced an index to measure investor protection statistically and found that common law countries performed better on average than civil law countries. A broad array of legal sources, however, reveal many mechanisms that interfere with, or substitute for, the mechanisms for shareholder protection used to construct the index. A recoding of the index to include these sources yields no significant differences between common law and civil law jurisdictions. This finding casts doubt on the received premise of recent research that common law jurisdictions offer better shareholder protection than civil law jurisdictions. It highlights instead the existence of a fundamentally different distribution of legal powers between U.S. and Continental European corporations. This article shows that this difference shapes the functioning of the shareholder protection mechanisms that comprise the index of La Porta et al. Furthermore, the difference in power distribution undermines the relationship they allege between shareholder protection and ownership structures and better explains the differences in ownership structures, as well as many other aspects of corporate life.

The Judiciary and Economic Development

Abstract: No degree of substantive law improvement can bring the rule of law to a country without effective enforcement, and a sound judiciary is the key to enforcement. Judicial independence and the strength and efficiency of judiciaries are associated with economic growth. Some research finds legal formalism (that is, procedural complexity) undesirable. Though procedural complexity may be a barrier to judicial efficiency, it is also true that some procedural rules are designed to avoid legal error, also surely an aspect of efficiency. In any event, many of the measured differences in formalism between the common law and civil law are related to the far different role of counsel and judge in the two legal systems. Judicial efficiency measured in terms of duration of cases shows an extraordinarily wide variance among countries within individual legal families, suggesting that something at least as significant as legal origin may be involved. The related concepts of separation of powers and of checks and balances are not well-defined, and their meaning varies depending on the country and the objective of the constitutional founders. For economic development the constitutional provisions on review of administrative acts take on special importance. Judicial independence is not just a question of the structural independence of the judiciary within the governmental system, but also of the behavioral independence of individual judges. The latter is based both on law (for example, lifetime tenure) and on the method of appointment of the judiciary, but also on the education, economic security, and place in society of individual judges. Especially noteworthy in this regard is the traditional independence of English judges despite the absence of constitutional structural independence and of any power of judicial review.

Legal Research: A Guide to Online Tutorials for First Year Law Students

Abstract: This article is a guide to the many legal research tutorials available online. Tutorials that have been selected for inclusion in this guide are recommended as relevant and useful, especially for first year law students. The tutorials cover legal research in secondary sources, case law (including citators), statutes/legislation, topical or area of law, and search strategies/skills. The sources of the tutorials included in this guide are CALI, Westlaw, and LexisNexis.

Financial Scandals and the Role of Private Enforcement: The Parmalat Case

Abstract: Coming shortly after the Enron and WordCom scams, the Parmalat scandal offers a good opportunity to compare failures on both sides of the Atlantic. In this paper, we start by tracing Parmalat's history and describe the frauds and the criminal proceedings and civil actions that followed the company's collapse both in Italy and the US. We then focus on Parmalat's governance and gatekeepers, and argue that gatekeepers are substantially undeterred in Italy because of poor enforcement rather than legislative black holes. In fact, law on books, in particular the civil law concerning auditors, is even more severe than common law. We subsequently analyse the causes of under-enforcement and the reasons why Parmalat generated litigation in the US rather than Italy. Drawing from economic analysis, we explain the role of private enforcement and consider the benefits of class actions. In this respect, we emphasize the importance of discovery and pleading rules. We also find that the interplay between public and private enforcement is missing in Italy and argue, by way of conclusion, that US securities regulation was transplanted into Continental Europe without sufficient modernisation as to civil procedure in the area of mass claims and complex litigation.

Who Believes in Human Rights?: Reflections on the European Convention

Abstract: Many people believe passionately in human rights. Others - Bentham, Marx, cultural relativists and some feminists amongst them - dismiss the concept of human rights as practically and conceptually inadequate. This book reviews these classical critiques and shows how their insights are reflected in the case law of the European Court of Human Rights. At one level an original, accessible and insightful legal commentary on the European Convention, this book is also a groundbreaking work of theory which challenges human rights orthodoxy. Its novel identification of four human rights schools proposes that we alternatively conceive of these rights as given (natural school), agreed upon (deliberative school), fought for (protest school) and talked about (discourse school). Which of these concepts we adopt is determined by particular ways in which we believe, or do not believe, in human rights.

The Enforcement of Jurisdiction Agreements Within The Brussels Regime

Abstract: Until relatively recently the question of whether it is possible to get damages for breach of an exclusive jurisdiction clause was very rarely considered by the courts and had attracted little academic interest. But when considered alongside recent developments in cases covered by the Brussels regime, the subject becomes of potentially much greater practical significance. The main purpose of this article is to consider how the newly developing common law principles might apply in that context.

What Practices Constitute Torture? US and UN Standards

Abstract: This article is a response to the attempts of the US government to redefine torture in a highly restrictive sense and at the same time distinguishing it from other forms of cruel inhuman or degrading treatment (CIDT). To this end, the author undertakes a short analysis of the understanding of the concept of torture and CIDT by the present US Government and asks whether this interpretation corresponds to the definition of torture in Article 1, Convention against Torture (CAT). An analysis of the techniques authorized by US Secretary of Defense Donald Rumsfeld for the interrogation of Guantanamo detainees is also carried out in light of applicable UN standards and international case law.

Human rights and judicial review: a critique of “due deference”

Abstract: ENGLISH public law has gained in coherence with the gradual disappearance of rigid doctrinal barriers to judicial review. The repudiation of earlier restrictions on review of ministers’ exercise of the royal prerogative marked a particularly significant step towards a more rational system of legal control. It is true that acknowledgement of the susceptibility of prerogative decisions to judicial review, in principle, was accompanied by warnings about the constraints of justiciability in practice; but the various supposed categories of non-justiciable decision-making have been gradually breached and eroded in the course of common law development. When individual rights have required protection, neither the formal source of the power in question nor its intrinsically discretionary character have proved impenetrable barriers to judicial scrutiny.

Outside Director Liability Across Countries

Abstract: Settlements reached in 2005 in securities litigation involving Enron and WorldCom highlighted the financial risks faced by outside directors of public companies. We argue elsewhere that Enron and WorldCom, as instances where directors made damages payments out of their own pockets, are and likely will remain exceptional in the United States (see Bernard Black, Brian Cheffins and Michael Klausner, Outside Director Liability, http://ssrn.com/abstract=894921). In this paper, we show that the risk of out-of-pocket payment is likewise very low on a cross-border basis, in both common law and civil law countries. The largest source of risk is efforts by government agencies to make an example of particular directors, even when the cost of doing so likely exceeds the financial recovery. We study Britain and Germany in depth and offer summaries of the position in Australia, Canada, France, and Japan. We find that while specific laws quite often differ, there is substantial functional convergence. In each country we analyze, due to a combination of substantive law, procedural rules, and market forces, the out-of-pocket liability risk faced by outside directors of public companies is similar - present but very small. We draw upon our cross-border analysis to assess the legal risks outside directors can expect to face going forward, both in the United States and elsewhere. We also briefly consider whether the current approach reflects sensible public policy. Other pieces of this overall project are: http://ssrn.com/abstract=382422 (a pre-Enron and WorldCom version of "Outside Director Liability", 2004) http://ssrn.com/abstract=878135 (policy analysis, 2005) http://ssrn.com/abstract=628223 (study of Korea, 2011) http://ssrn.com/abstract=682507 (summary article for a finance audience, 2005) http://ssrn.com/abstract=800584 (Germany-centered, 2005) http://ssrn.com/abstract=800604 (German language version of Germany-paper, 2005) http://ssrn.com/abstract=590913 (summary article for a practitioner audience, 2004)

The National Courts' Mandate in the European Constitution

Abstract: The reform of the European Constitution continues to dominate news headlines and has provoked a massive debate, unprecedented in the history of EU law. Against this backdrop Monica Claes' book offers a "bottom up" view of how the Constitution might work, taking the viewpoint of the national courts as her starting point, and at the same time returning to fundamental principles in order to interrogate the myths of Community law. Adopting a broad, comparative approach, she analyses the basic doctrines of Community law from both national constitutional perspectives as well as the more usual European perspective. It is only by combining the perspectives of the EU and national constitutions, she argues, that a complete picture can be obtained, and a solid theoretical base (constitutional pluralism) developed. Her comparative analysis encompasses the law in France, Belgium, Denmark, the Netherlands, Germany, Ireland, Italy and the United Kingdom and in the course of her inquiry discusses a wide variety of prominent problems. The book is structured around three main themes, coinciding with three periods in the development of the judicial dialogue between the ECJ and the national courts. The first focuses on the ordinary non-constitutional national courts and how they have successfully adapted to the mandates developed by the ECJ in Simmenthal and Francovich. The second examines the constitutional and other review courts and discusses the gradual transformation of the ECJ into a constitutional court, and its relationship to the national constitutional courts. The contrast is marked; these courts are not specifically empowered by the case law of the ECJ and have reacted quite differently to the message from Luxembourg, leaving them apparently on collision course with the ECJ in the areas of judicial Kompetenz Kompetenz and fundamental rights. The third theme reprises the first two and places them in the context of the current debate on the Constitution for Europe and the Convention, taking the perspective of the national courts as the starting point for a wide-ranging examination of EU's constitutional fundamentals. In so doing it argues that the new Constitution must accommodate the national perspective if it is to prove effective.

Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator

Abstract: This essay focuses on Wal-Mart's role in an important emerging phenomenon: the development of efficient systems of private law making by non-governmental organizations that sometimes supplement, and sometimes displace traditional legal systems. These emerging global systems of private law making are spearheaded by an important group of large multinational corporations like Wal-Mart. It arises in the shadow of, parallel with, and in response to the less successful attempts by national and international bodies to regulate economic behavior on a global scale. These systems are grounded in private law, contractual and business connections between the great multi-national corporations and the many entities with which they have business relationships. This essay concentrates on one aspect of those connections - supplier or supply chain agreements involving multinational corporations. It examines the way Wal-Mart is able to use those contractual relationships to legislate behavior among its suppliers with respect to product quality, working conditions for the suppliers' employees, ethical conduct, and similar matters. The particulars of those behaviors reflect Wal-Mart's perception of the tastes and expectations of its consumers, investors and the financial community. Those tastes and expectations, in turn, are formed by elements of civil society and spread by elements of the media. Civil society elements serve not only to form consumer tastes, but also to develop Wal-Mart's specific set of behavior norms and then independently monitor compliance by Wal-Mart and its suppliers with their obligations. The media independently serves as the source of legitimacy and the conduit through which the results of civil society monitoring efforts, and the efforts of Wal-Mart to correct these breaches are transmitted. The media also serves as a forum through which consumer and investment tastes in behavior are developed. Together, multinationals, elements of civil society, the media, and the consumer-investor community constitute the elements of an autonomous system for the efficient regulation of economic behavior on a global scale that may contribute to the development of functionally differentiated and partial global systems of common law beyond the state.

The German Law of Contract: A Comparative Treatise

Abstract: Recently the contract section of the German Code was radically amended after one hundred years of un-altered existence. "The German Law of Contract," radically recast, enlarged, and re-written, now details and explains for the first time these changes for the benefit of Anglophone lawyers. Along with its companion work, "The German Law of Torts," the two volumes provide, in a total of some 2,000 pages, one of the fullest accounts of the German Law of Obligations available in the English language. One hundred and twenty translated contract decisions, coming from the pens of distinguished academics such as F. H. Lawson, Kurt Lipstein, Tony Weir and Raymond Youngs, added to the one hundred and fifty tort cases already published in the companion tort volume, make this work a unique source-book for students, practitioners, judges and academics wishing to have access to prime sources. Through its method of presentation of German law, the book also represents an original contribution to the art of comparison. An additional feature of the Contract volume is the way in which it reveals the growing impact which European Directives are having upon the traditional, liberal, contract model, thereby bringing German and English law closer to each other, especially in the area of consumer protection. The book will be of use to law students reading contracts and comparative law, practitioners, judges and businessmen.

A tale of two courts: Luxembourg, Strasbourg and the Growing European human rights acquis

Abstract: This article seeks to explore the human rights jurisdiction of the Court of Human Rights and European Court of Justice, and most particularly to study how they interact with each other. How do they acknowledge each other’s existence; how often do they cite each other’s case law; how, if at all, does their human rights jurisprudence differ from each other; how, if at all, does the bringing of a case in one court rather than the other affect its outcome; how does the courts’ use of each other’s materials differ from traditional comparative law usages; how does the close development of two near, but not identical, human rights jurisdictions in Europe affect the development of human rights in the European legal space?

Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties

Abstract: This Article offers a narrow lens analysis of a key debate over the role of foreign authority in U.S. courts: the use of international human rights treaties in interpreting domestic law. Professor Waters argues that recent U.S. Supreme Court decisions (including Roper v. Simmons) should be viewed as part of a transnational trend among common law courts—a trend that she calls creeping monism. Common law judges are increasingly abandoning their traditional dualist orientation to treaties and are beginning to utilize human rights treaties despite the absence of implementing legislation giving domestic legal effect to the treaties. By developing a wide variety of so-called interpretive incorporation techniques, judges are entrenching international treaty obligations into domestic law, thus becoming powerful mediators between the domestic and international legal regimes. The Article traces the growing influence of creeping monism and interpretive incorporation, in an attempt to shift the discourse away from the all-or-nothing debate of recent years to a more nuanced understanding of the complexities involved in incorporating international legal sources into the work of domestic courts. Drawing on a six-year study of judicial treatment of the International Covenant on Civil and Political Rights by the U.S. Supreme Court and four other common law jurisdictions, the Article develops a typology of interpretive incorporation techniques that courts are utilizing. It also provides statistical evidence regarding the use of human rights treaties across jurisdictions. Finally, it maps out a possible normative framework for evaluating courts' use of human rights treaties in interpreting domestic law.

Legacies of common law: ‘crimes of honour’ in India and Pakistan

Abstract: Through a comparative analysis of crimes of ‘honour’ in India and Pakistan and an examination of appellate judgments from the two countries, we reflect upon how a rights-based discourse of modern nation-states forms a complex terrain where citizenship of the state and membership of communities are negotiated and contested through the unfolding of complex legal rituals in both sites. We identify two axes to explore the complex nature of the interaction between modernity and tradition. The first is that of governance of polities (state statutory governance bodies) and the second is the governance of communities (caste panchayats and jirgahs). We conclude that the diverse legacies of common law in India and Pakistan frame an anxious relationship with the categories of tradition and modernity, which inhabit spaces in between the governance of polities and the governance of communities, and constantly reconstitute the relationship between the local, national and the global.

Legal Origins and Modern Stock Markets

Abstract: Legal origin - civil vs. common law - is said in much modern economic work to determine the strength of financial markets and the structure of corporate ownership, even in the world''s richer nations. The main means are thought to lie in how investor protection and property protection connect to civil and common law legal origin. But, I show here, although stockholder protection, property rights, and their supporting legal institutions are quite important, legal origin is not their foundation. Modern politics is an alternative explanation for divergent ownership structures and the differing depths of securities markets in the world''s richer nations. Some legislatures respect property and stock markets, instructing their regulators to promote financial markets; some do not. Brute facts of the twentieth century - the total devastation of many key nations, wrecking many of their prior institutions - predict modern postwar financial markets'' strength well and tie closely to postwar divergences in politics and policies in the world''s richest nations. Nearly every core civil law nation suffered military invasion and occupation in the twentieth century - the kinds of systemic shocks that destroy even strong institutions - while no core common law nation collapsed under that kind of catastrophe. The interests and ideologies that thereafter dominated in the world''s richest nations and those nations'' basic economic tasks (such as postwar reconstruction for many) varied over the last half century, and these differences in politics and tasks made one collection of the world''s richer nations amenable to stock markets and another indifferent or antagonistic. These political economy ideas are better positioned than legal origin concepts to explain the differing importance of financial markets in the wealthy West.

Bella's case : Parsi identity and the law in colonial Rangoon, Bombay and London, 1887-1925

Abstract: This dissertation explores the ways in which the ethnic identity of South Asia's Parsis was forged through litigation in the British colonial courts. The Parsis were Zoroastrians who fled to India after the seventh-century conquest of Persia by Arab Muslims. Under British rule, they became an elite of intermediary traders and professionals. Around 1900, a series of lawsuits erupted on the admission of ethnic outsiders into the Parsi community through intermarriage, conversion, and adoption. This dissertation is a study of the most extensive of these cases, the Privy Council appeal of Saklat v Bella (1914-25). The case erupted when an Indian orphan named Bella was adopted by Parsis in Rangoon, initiated into the Zoroastrian religion, and taken into the Rangoon fire temple, a space arguably desecrated by the presence of ethnic outsiders. Through an examination of case papers and judges' notebooks from the Judicial Committee of the Privy Council (London) and the Bombay High Court (Mumbai), the dissertation explores competing visions of Parsi identity that were promoted by reformist and orthodox Parsis as litigants, witnesses, lawyers, judges, and journalists. Bella's case highlights two sorts of displacement. First, a patrilineal definition of Parsi identity was overtaken in this period by a more exclusive, eugenics-based racial model. As anxieties over communal extinction peaked with the advent of the census, orthodox Parsis clung to the notion of Persian racial purity, excluding Indian, Burmese, and European outsiders with renewed tenacity. Second, the colonial legal system's reconfiguration of Parsi religious institutions as trusts unravelled the authority of Zoroastrian priests as arbiters of religious doctrine. On a larger scale, Saklat v Bella illustrates how a "centripetal jurisprudence" contributed to the creation of a unitary "legal India" and an empire of common law. It is also a story about legal pluralism and the rise of a non-European legal profession in the colonial context. Parsis rose to prominence as lawyers and judges in this period, and used their legal influence to carve out a space for Zoroastrian legal identity.

Rethinking the Development of Patents: An Intellectual History, 1550-1800

Abstract: The history of patents begins, not with inventions, but with royal grants of industrial monopolies in the fifteenth century. By the end of the eighteenth century, however, patents represent a right to property in a novel mechanical or scientific invention. Commentators today maintain that this radical shift from royal monopoly privilege to legal property right occurred solely in response to economic or institutional demands. While political, economic and institutional conditions certainly played a role in this story, this article maintains that the ideas of John Locke were the fountainhead behind the evolution of patents for inventions. Although there were fits and starts toward a new patent doctrine in the seventeenth century, the watershed moment occurred when the common law courts acquired jurisdiction over patents from the Privy Council in the mid-eighteenth century. The common law judges - learned men steeped in the traditional rights of Englishmen and in the philosophy of natural rights - redefined the doctrine of patents by drawing upon the ideas that formed the basis of their own political and legal philosophy. The result was the novelty and the specification requirements, which are first described by Lord Mansfield and Justice Buller in terms that reflect John Locke's labor theory of property and social contract theory. In surveying the historical record, i.e., in looking at the ways in which royal councilors, judges and inventors conceived of patents between 1550 and 1800, the influence of Locke's ideas upon this important legal doctrine is evident. This provenance of patent law thus suggests that an inventor's moral right to the property in one's invention should play a role in the ongoing debate concerning the protections afforded by the patent laws.

Dicey, Morris and Collins on the Conflict of Laws

Abstract: Preliminary matters. Procedure. Jurisdiction and foreign judgments. Family law. Law of property. Corporations and insolvency. Law of obligations.

Law in Context

Abstract: Contents Introduction Part 1 Law's blueprints Introduction: contextualizing legal education The political and philosophical foundations of law Formalism and the rule of law Part 2 The processes of law Access to justice Litigation Lawyers, clients and ethics Part 3 Law and power The politics of law making Gender Race and multiculturalism Part 4 Law and regulation Foundations of economic analysis Economics and the common law Economics and government regulation Part 5 Conclusion Law, terrorism and globalism References Index