Showing papers on "Common law published in 2012"

Defining and describing what we do: Doctrinal legal research

Abstract: The practitioner lawyer of the past had little need to reflect on process. The doctrinal research methodology developed intuitively within the common law — a research method at the core of practice. There was no need to justify or classify it within a broader research framework. Modern academic lawyers are facing a different situation. At a time when competition for limited research funds is becoming more intense, and in which interdisciplinary work is highly valued and non-lawyers are involved in the assessment of grant applications, lawyer-applicants who engage in doctrinal research need to be able to explain their methodology more clearly. Doctrinal scholars need to be more open and articulate about their methods. These methods may be different in different contexts. This paper examines the doctrinal method used in legal research and its place in recent research dialogue. Some commentators are of the view that the doctrinal method is simply scholarship rather than a separate research methodology. Richard Posner even suggests that law is ‘not a field with a distinct methodology, but an amalgam of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular body of texts, practices, and institutions ...’.1 Therefore, academic lawyers are beginning to realise that the doctrinal research methodology needs clarification for those outside the legal profession and that a discussion about the standing and place of doctrinal research compared to other methodologies is required.

Government ownership and corporate governance: Evidence from the EU.

Abstract: The ongoing global financial crisis has led to the largest increase in state intervention since the Great Depression. Direct government ownership in publicly-traded corporations has increased dramatically since 2008. How will this increase in public ownership affect the governance of these erstwhile private companies? We examine the impact of government ownership on corporate governance using a sample of firms from the European Union, a region that is relatively familiar with active government participation. Our main finding is that government ownership is associated with lower governance quality. We further show that while government intervention is negatively related to governance quality in civil law countries, it is positively related to governance quality in common law countries. Finally, we find that the preferential voting rights of golden shares are especially damaging to governance quality.

The Making of Law: An Ethnography of the Conseil d’État

Abstract: Bruno Latour, The Making of Law: An Ethnography of the Conseil d’Etat, Cambridge, Polity Press, 2009, i–xii + 297pp., £18.99 (paperback), ISBN 978-0-7456-3985-7 For and among us, of all our contemp...

Thinking Like a Lawyer: A New Introduction to Legal Reasoning

Abstract: * Preface * Is There Legal Reasoning? * Rules--in Law and Elsewhere 2.1 Of Rules in General 2.2 The Core and the Fringe 2.3 The Generality of Rules 2.4 The Formality of Law * The Practice and Problems of Precedent 3.1 Precedent in Two Directions 3.2 Precedent--The Basic Idea 3.3 A Strange Idea 3.4 On Identifying a Precedent 3.5 On the Force of Precedent--Overruling, Distinguishing, and Other Types of Avoidance * Authority and Authorities 4.1 The Idea of Authority 4.2 On Binding and So-Called Persuasive Authority 4.3 Why Real Authority Need Not be "Binding" 4.4 Can There Be Prohibited Authorities? 4.5 How Authorities Become Authoritative * The Use and Abuse of Analogies 5.1 On Distinguishing Precedent from Analogy 5.2 On the Determination of Similarity 5.3 The Skeptical Challenge 5.4 Analogy and the Speed of Legal Change * The Idea of the Common Law 6.1 Some History and a Comparison 6.2 On the Nature of the Common Law 6.3 How Does the Common Law Change? 6.4 Is the Common Law Law? 6.5 A Short Tour of the Realm of Equity * The Challenge of Legal Realism 7.1 Do Rules and Precedents Decide cases? 7.2 Does Doctrine Constrain Even if It Does Not Direct? 7.3 An Empirical Claim 7.4 Realism and the Role of the Lawyer 7.5 Critical Legal Studies and Realism in Modern Dress * The Interpretation of Statutes 8.1 Statutory Interpretation in the Regulatory State 8.2 The Role of the Text 8.3 When the Text Provides No Answer 8.4 When the Text Provides a Bad Answer 8.5 The Canons of Statutory Construction * The Judicial Opinion 9.1 The Causes and Consequences of Judicial Opinions 9.2 Giving Reasons 9.3 On Holding and Dicta 9.4 The Declining Frequency of Opinions * Making Law with Rules and Standards 10.1 The Basic Distinction 10.2 Rules, Standards, and the Question of Discretion 10.3 Stability and Flexibility 10.4 Rules and Standards in Judicial Opinions * Law and Fact 11.1 On the Idea of a Fact 11.2 Determining Facts at Trial--The Law of Evidence and Its Critics 11.3 Facts and the Appellate Process * The Burden of Proof and Its Cousins 12.1 The Burden of Proof 12.2 Presumptions 12.3 Deference and the Allocation of Decision-Making Responsibility * Index

Embeddedness and Regional Integration: Waiting for Polanyi in a Hayekian Setting

Abstract: This article analyzes the social potential of regional integration pro- cesses by using the example of European integration+ Recent case law from the European Court of Justice has led some observers to argue that judicial decisions increasingly provide European politics with a " Polanyian" drive+ We test this claim by distinguishing three dimensions to European economic and social integration: market-restricting integration, market-enforcing integration, and the creation of a European area of nondiscrimination+ We also identify two forms of integration that have different speeds, scopes, and potentials: political integration and judicial inte- gration+ The evidence shows that the EU has come closer to Hayek's vision of "inter- state federalism" than is usually warranted because market-enforcing integration and European nondiscrimination policies have asymmetrically profited from "integra- tion through law+" The opportunities for international courts to push ahead market- enforcing integration increase as the participants of regional integration processes become more diverse+ In such "Hayekian" constellations, individual rights are increas- ingly relocated to the central level, at the cost of subordinating the decentralized capacity for solidarity and interpersonal redistribution+ Above all, The Great Transformation tells of the conflict between the imper- atives of a capitalist world economy and the pursuit of social welfare within nation-states+ Polanyi's account of the 1920s and 1930s analyzes the incom- patibility of international capitalist arrangements with both democracy and the social reforms that had been won by the European working classes+

The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions

Abstract: Although there are many texts on the law of evidence, surprisingly few are devoted specifically to the comparative and international aspects of the subject. The traditional view that the law of evidence belongs within the common law tradition has obscured the reality that a genuinely cosmopolitan law of evidence is being developed in criminal cases across the common law and civil law traditions. By considering the extent to which a coherent body of common evidentiary standards is being developed in both domestic and international jurisprudence, John Jackson and Sarah Summers chart this development with particular reference to the jurisprudence on the right to a fair trial that has emerged from the European Court of Human Rights and to the attempts in the new international criminal tribunals to fashion agreed approaches towards the regulation of evidence.

The UN Convention on the Elimination of All Forms of Discrimination against Women : a commentary

Abstract: First commentary on one of the most important anti-discrimination and women's rights instruments Systematic article-by-article structure, setting out each provision's negotiating history, interpretation, and relevant case law Full overview of the work of the CEDAW Committee, including all of its decisions and recommendations Includes detailed history of the adoption of the Optional Protocol This volume is the first comprehensive commentary on the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol. The Convention is a key international human rights instrument and the only one exclusively addressed to women. It has been described as the United Nations' 'landmark treaty in the struggle for women's rights'. The Commentary describes the application of the Convention through the work of its monitoring body, the Committee on the Elimination of Discrimination against Women. It comprises detailed analyses of the Preamble and each article of the Convention and of the Optional Protocol. It also includes a separate chapter on the cross-cutting substantive issue of violence against women. The sources relied on are the treaty language and the general recommendations, concluding observations and case law under the Optional Protocol, through which the Committee has interpreted and applied the Convention. Each chapter is self-contained but the Commentary is conceived of as an integral whole. The book also includes an Introduction which provides an overview of the Convention and its embedding in the international law of human rights. Readership: Scholars and students of international human rights law and women's rights; practitioners and NGO and government legal advisers and policy-makers working in these areas

Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights

Abstract: Why and how do international courts justify decisions with citations to their own case law? We argue that, like domestic review courts, international courts use precedent at least in part to convince ‘lower’ (domestic) courts of the legitimacy of judgements. Several empirical observations are consistent with this view, which are examined through a network analysis of European Court of Human Rights (ECtHR) citations. First, the Court cites precedent based on the legal issues in the case, not the country of origin. Second, the Court is more careful to embed judgements in its existing case law when the expected value of persuading domestic judges is highest. These findings contribute to a developing literature that suggests international and domestic review courts develop their authority in similar ways. Why and how do international courts justify their rulings with citations to their own case law? Formally, the legal effect of an international court ruling is limited to the specific dispute it resolves. Yet, international courts frequently treat their past decisions as if they set precedents for new ones. A straightforward explanation for this divergence between formal rule and judicial practice is that relying on past decisions improves efficiency in the internal workings of the court. While this is undoubtedly part of the story, we argue that international courts also strategically use case citations to enhance the degree to which their decisions are perceived as legitimate by external audiences. International courts depend on domestic actors for compliance. While political actors are unlikely to be persuaded by legal justifications, domestic judges may well be more inclined to implement decisions that demonstrate legal consistency across time and place. We suggest that an international court adjusts the choice of case citations to the demands of domestic legal audiences and exerts more effort on embedding decisions in case law when the expected impact of persuading these audiences is highest. Importantly, this implies that an international court maximizes its legitimacy by avoiding fragmentation in its case law along lines of legal culture or other country-specific factors. This article examines whether case citation patterns in the most prolific international court, the European Court of Human Rights (ECtHR), fit these theoretical expectations.

Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights

Abstract: Why and how do international courts justify decisions with citations to their own case law? We argue that, like domestic review courts, international courts use precedent at least in part to convince “lower” (domestic) courts of the legitimacy of judgments. Several empirical observations are consistent with this view, which we examine through a network analysis of European Court of Human Rights (ECtHR) citations. First, the Court cites precedent based on the legal issues in the case, not the country of origin. Second, the Court is more careful to embed judgments in its existing case law when the expected value of persuading domestic judges is highest. These findings contribute to a developing literature that suggests international and domestic review courts develop their authority in similar ways.

Judicial Dialogue and Judicial Competition and Global Environmental Law: A Case Study on the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters

Abstract: The mutual relation and influence of international environmental law and national environmental law has been studied, from both a top-down and as well as a bottom-up perspective: the orthodox analysis of the consequences of international environmental law for national law and policy has been combined with an analysis starting from national law, looking into the influences national law exerts upon international law. Yet, it is submitted that there is another dimension emerging in this mutual relationship. This dimension reflects a more ‘horizontal’ approach in the sense that the main focus is the relationship between national and international actors who exchange information, decisions, rulings, opinions and ideas about how international environmental law rules, institutions, principles and concepts should or could be fleshed out and further developed.This paper focuses on the provisions of the Aarhus Convention on legal protection in environmental matters and will discuss how judicial dialogue and judicial competition between the various bodies, courts, tribunals, etc., on both the national and international level, contribute to the emergence of a global environmental law on legal protection in environmental matters. In particular the interplay between the Aarhus Compliance Committee, the European Court of Justice, and the supreme national administrative courts of e.g. Germany, Sweden and the Netherlands will be highlighted.

The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to

Abstract: The extraterritoriality or extraterritorial application of international and European human rights treaties refers to the recognition by those treaties' states parties of the international and European human rights of individuals or groups of individuals situated outside their territory and, in a second stage, to the identification of their corresponding duties to those individuals. Examples of extraterritoriality abound in international human rights practice, and in particular in the European Court of Human Rights’ case law. Except for vague and often misleading gestures to the universality of human rights, which allegedly requires their extraterritorial application, however, many of the normative considerations underlying the extraterritorial applicability of human rights have not been broached in the human rights law literature. Nor, conversely, have human rights theorists, even among those who take the supply side of human rights seriously, devoted much attention to the threshold criteria for the abstract recognition of human rights and the trigger of the corresponding duties. To remedy some of those shortcomings, this article endeavours to bring some normative human rights theorizing to bear on the European Court of Human Rights’ recent practice on extraterritoriality. More specifically, the article delves deeper into the notion of ‘jurisdiction’ qua threshold criterion for the applicability of the European Convention on Human Rights both within and outside its states parties’ territories; distinguishes it from related notions such as authority, coercion, power, or control; and explains its normative consequences.

The Routledge companion to philosophy of law

Abstract: Part I: Theories About the Nature of Law 11 The Nature of Law: An Introduction Andrei Marmor 12 Natural Law Theory: Its Past and Its Present John Finnis 13 Legal Positivism: Early Foundations Gerald J Postema 14 Legal Positivism: Contemporary Debates Julie Dickson 15 The Authority of Law Scott Hershovitz 16 Obligations, Interpretivism, and the Legal Point of View Nicos Stavropoulos Part II: Legal Reasoning 21 Vagueness and the Law Scott Soames 22 Legal Interpretation Timothy Endicott 23 Precedent Frederick Schauer Part III: Theories of Legal Areas 31 Criminal Law 311 The Justification of Punishment Mitchell N Berman 312 The Voluntary Act Requirement Gideon Yaffe 313 Criminal Attempts R A Duff 314 Wrongness and Criminalization Victor Tadros 315 The Insanity Defense Gary Watson 316 Self-Defense Larry Alexander 32 Contract 321 Are Contracts Promises? Seana Valentine Shiffrin 33 Torts 331 Proximate Causation in the Law of Torts Benjamin C Zipursky 332 Torts, Risks and Rights Stephen Perry 34 Property 341 Private Property Daniel Attas 342 Taxation, Redistribution and Property Rights Peter Vallentyne 35 Family 351 The Pursuit of Intimacy and Parental Rights Scott Altman 36 Evidence 361 Is It Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture? Larry Laudan 37 International Law 371 International Law and Global Justice Michael Blake 372 Human Rights John Tasioulas 373 The Morality and Law of War Seth Lazar 374 The Legitimacy of International Institutions Thomas Christiano 38 Environmental Law 381 Environmental Ethics, Future Generations and Environmental Law Clark Wolf 39 Constitutionalism 391 Judicial Review of Legislation Jeremy Waldron 392 Constitutional Interpretation Wilfrid J Waluchow Part IV: Law as a Coercive Order 41 Coercion William A Edmundson 42 Paternalism Douglas Husak 43 Enforcing Morality A P Simester 44 The Rule of Law Grant Lamond Part V: Moral Obligations to Law 51 The Moral Obligations to Obey the Law George Klosko 52 Conscientious Objection and Civil Disobediences Kimberley Brownlee 53 Law, Loyalty and Citizenship Meir Dan-Cohen Part VI: Rights and Equality 61 The Nature of Rights Christopher Morris 62 Discrimination and Equality Kasper Lippert-Rasmussen 63 Privacy Judith Wagner DeCew 64 Freedom of Speech Alon Harel

The Declining Influence of the United States Constitution

Abstract: It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries. In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream. The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution-making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India. Another possibility is that international and regional human rights instruments have become especially influential upon the manner in which national constitutions are written. We find little evidence to indicate that any of the leading human rights treaties now serves as a dominant model for constitutional drafters. Some noteworthy patterns of similarity between national constitutions and international legal instruments do exist: For example, the constitutions of undemocratic countries tend to exhibit greater similarity to the Universal Declaration of Human Rights, while those of common law countries manifest the opposite tendency. It is difficult to infer from these patterns, however, that countries have actually emulated international or regional human rights instruments when writing their constitutions.

The Cambridge Companion to International Law

Abstract: Machine generated contents note: Introduction James Crawford and Martti Koskenniemi; Part I. The Contexts of International Law: 1. International law in diplomatic history Gerry Simpson; 2. International law in the world of ideas Martti Koskenniemi; 3. International law as 'law' Frederic Me;gret; Part II. International Law and the State: 4. Statehood - territory, people, government Karen Knop; 5. Uses of 'sovereignty' in the law James Crawford; 6. Exercise and limits of jurisdiction Bruno Simma and Andreas Muller; 7. Lawfare and warfare David Kennedy; Part III. Techniques and Arenas: 8. Law-making and sources - the argumentative basis Hilary Charlesworth; 9. Judicial settlement and arbitration - the invisible centre of international law Benedict Kingsbury; 10. International institutions Jan Klabbers; 11. Policing and sanctions Dino Kritsiotis; Part IV. Projects of International Law: 12. Constituting order Anne Orford; 13. Legitimating the rule of law B. S. Chimni; 14. Human rights in disastrous times Susan Marks; 15. Attacking evil Sarah Nouwen; 16. Regulating trade and investment Helene Ruiz-Fabri; 17. The role of international law in reproducing massive poverty Thomas Pogge; 18. Conserving resources Sundhuya Pahuja.

International Law as Social Construct: The Struggle for Global Justice

Abstract: INTRODUCTION PART I - LAW AS SOCIAL CONSTRUCT 1. Society 2. Myth 3. Reason PART II - THE CONSTRUCTION OF INTERNATIONAL LAW 4. De- and re-mythologizing international law 5. Players 6. Rules 7. Values 8. Remedies EPILOGUE

L’arbitrage dans les contrats publics colombiens

Abstract: Even though Colombian and French administrative law are grounded on the same principles, Colombian administrative law did not adopt the stance that public legal bodies are prevented from agreeing arbitration clauses and submitting their disputes to arbitration. Colombian case law has recognized arbitration clauses in relation to disputes arising out of public contracts, even when there is no specific legal authorization to do so. The principle of the rule of law, the continuity of the provision of public services, the public interest and the existence of a specialized administrative jurisdiction, are the foundations of public contract law. Nevertheless, public contract law is implemented under the aegis of contract law and it shares essential aspects of arbitration law: the autonomy of the parties free will and freedom of contract. Since 1993, Colombian law has not imposed any limit on the arbitration of disputes arising out of public contracts, even if former laws did so. Could this legal progress be construed as granting similar jurisdiction to arbitrators and administrative judges? Is general arbitration law suitable for the needs of the settlement of disputes arising out of public contracts? What is the scope of this change for the international arbitration of disputes arising out of public contracts? Despite the apparent contradictions, the essential tenets of public contracts, do not conflict with the key components of arbitration. The jurisdiction of arbitrators is confined to “contentieux subjectifs”. Colombian case law has developed since 1964 and has been consolidated over time, allowing us to evaluate to what extent the arbitration of disputes arising out of public contracts is an effective and efficient tool for public administration.

The Limits of Legal Reasoning and the European Court of Justice

Abstract: 1. Introduction and overview: interpretation and the European Court of Justice 2. Reading the Court of Justice 3. Reconceptualising the legal reasoning of the Court of Justice: interpretation and its constraints 4. Retrieving a separation of powers in the EU 5. EU law and a hierarchy of interpretative techniques 6. Levels of generality and originalist interpretation in EU law 7. Subjective originalist interpretation in EU law 8. Conclusion.

Theologians and Contract Law: The Moral Transformation of the Ius Commune (Ca. 1500-1650)

Abstract: Acknowledgment Prologue Notes on the Text and its Modes of Reference 1 Method and Direction 2 Theologians and Contract Law: Contextual Elements 3 Toward a General Law of Contract 4 Natural Limitations on 'Freedom of Contract' 5 Formal Limitations on 'Freedom of Contract' 6 Substantive Limitations on 'Freedom of Contract' 7 Fairness in Exchange 8 Theologians and Contract Law: Common Themes Bibliography Index

Hybrid Judicial Career Structures: Reputation v. Legal Tradition

Abstract: Scholars have distinguished career from recognition judiciaries, largely arguing that they reflect different legal cultures and traditions. We start by noting that the career/recognition distinction does not correspond perfectly to the civil law/common law distinction, but rather that there are pockets of each institutional structure within regimes that are dominated by the other type. We discuss the causes and implications of this phenomenon, arguing that institutional structure is better explained through a theory of judicial reputation/legitimacy than through a theory of legal origin or tradition. We provide some preliminary empirical support for our account.

Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?

Abstract: The doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

The Government of Social Life in Colonial India: Liberalism, Religious Law, and Women's Rights

Abstract: From the early days of colonial rule in India, the British established a two-tier system of legal administration. Matters deemed secular were subject to British legal norms, while suits relating to the family were adjudicated according to Hindu or Muslim law, known as personal law. This important new study analyses the system of personal law in colonial India through a re-examination of women's rights. Focusing on Hindu law in western India, it challenges existing scholarship, showing how - far from being a system based on traditional values - Hindu law was developed around ideas of liberalism, and that this framework encouraged questions about equality, women's rights, the significance of bodily difference, and more broadly the relationship between state and society. Rich in archival sources, wide-ranging and theoretically informed, this book illuminates how personal law came to function as an organising principle of colonial governance and of nationalist political imaginations.

Who cares about nationality? The path-dependent case law of the ECJ from goods to citizens

Abstract: The role that the ECJ plays in European integration has been much discussed by political scientists. Less is known about how case law develops. In this contribution, I give a historical–institutionalist account and argue that path dependence explains the course that case law takes. Litigants provide positive feedback in this process, aiming to strengthen their rights by transferring legal arguments from one area to the next, leading to a convergent interpretation of the fundamental freedoms. The contribution traces this development, analysing how legal arguments were transferred from goods markets to the free movement of workers and citizenship as a result of positive feedback to a distinct legal interpretation. I discard alternative explanations that explain case law by drawing on the preferences of member states or judges.

Law as a Leap of Faith: Essays on Law in General

Abstract: Introduction 1. Law as a Leap of Faith 2. Legal Positivism: 5 1/2 Myths 3. Some Types of Law 4. Can There be a Written Constitution? 5. How Law Claims, What Law Claims 6. Nearly Natural Law 7. The Legality of Law 8. On the Supposed Formality of the Rule of Law 9. Hart on Legality, Justice, and Morality 10. The Virtue of Justice, the Character of Law 11. Law in General

The Declining Influence of the United States Constitution

Abstract: It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries. In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream. The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution-making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India. Another possibility is that international and regional human rights instruments have become especially influential upon the manner in which national constitutions are written. We find little evidence to indicate that any of the leading human rights treaties now serves as a dominant model for constitutional drafters. Some noteworthy patterns of similarity between national constitutions and international legal instruments do exist: For example, the constitutions of undemocratic countries tend to exhibit greater similarity to the Universal Declaration of Human Rights, while those of common law countries manifest the opposite tendency. It is difficult to infer from these patterns, however, that countries have actually emulated international or regional human rights instruments when writing their constitutions.

The Most Restrictive Alternative: A Litigation History of Solitary Confinement in U.S. Prisons, 1960–2006

Abstract: Supermaxes across the United States detain thousands in long-term solitary confinement, under conditions of extreme sensory deprivation. Almost every state built a supermax between the late 1980s and the late 1990s. This chapter examines the role of federal prisoners’ rights litigation in the 1960s and 1970s in shaping the prisons, especially supermaxes, built in the 1980s and 1990s in the United States. This chapter uses a systematic analysis of federal court case law, as well as archival research and oral history interviews with key informants, including lawyers, experts, and correctional administrators, to explore the relationship between federal court litigation and prison building and designing. This chapter argues that federal conditions of confinement litigation in the 1960s and 1970s (1) had a direct role in shaping the supermax institutions built in the subsequent decades and (2) contributed to the resistance of these institutions to constitutional challenges. The history of litigation around supermaxes is an important and as-yet-unexplored aspect of the development of Eighth Amendment jurisprudence in the United States over the last half century.

Dismantling the Dublin System: M.S.S. v. Belgium and Greece

Abstract: The Dublin Regulation establishes criteria and mechanisms for determining the Member State responsible for examining an application for asylum lodged in the European Union by a third-country national. The system is based on the presumption that Member States may be considered ‘safe countries’ for asylum seekers, for which reason transfers from one Member State to another are supposed not to violate the principle of non-refoulement. The fact that all Member States have acceded to the 1951 Refugee Convention and to the European Convention on Human Rights, that they share a pledge to establish a Common European Asylum System comprising harmonized protection standards, and that, as members of the Union, are obliged to respect and protect fundamental rights, constitute the unspoken premises on which the supposition rests. However, the Dublin Regulation does not establish whether the presumption should be considered absolute or rebuttable, and how and when, in the latter situation, it should be deemed refuted in the individual case. How the ‘principle of refutability’ has come into being in the case law of the European Court of Human Rights constitutes the focus of the present analysis. The review of the Strasbourg jurisprudence is accompanied by an assessment of the diverging practices that have proliferated across the EU in this regard. The paper concludes with some reflections on the impact of the M.S.S. judgement on the forthcoming reform of the Dublin system.

Trade in Goods

Abstract: This new edition of Trade in Goods is an authoritative work on international trade by one of the most influential scholars in the field. It provides a comprehensive and detailed analysis of every WTO agreement dealing with trade in goods. The focus of the book is on the reasoning behind the various WTO agreements and their provisions, and the manner in which they have been understood in practice. It introduces both the historic as well as the economic rationale for the emergence of the multilateral trading system, before dealing with WTO practice in all areas involving trade in goods. It contests the claim that the international trade agreements themselves represent 'incomplete contracts', realized through interpretation by the WTO and other judicial bodies. The book comprehensively analyses the WTO's case law, and it argues that a more rigorous theoretical approach is needed to ensure a greater coherence in the interpretation of the core provisions regulating trade in goods. This second edition readdresses and moves beyond the discussion of the GATT presented in the first edition to assess in significant detail every trade in goods agreement at the WTO, both multilateral as well as plurilateral. The book is written to be accessible to those new to the field, with an authoritiative level of detail and analysis that makes it essential reading for lawyers and economists alike.

The Cost of Registering Property: Does Legal Origin Matter?

Abstract: There is a large literature that finds that common law countries perform better than civil law countries in various aspects of the institutional environment. The present paper extends these findings to the cost of registering property. In a sample of 121 countries, the authors find that the cost of registering property is lower by 22 percent of the world average in common law compared with civil law countries, a result largely driven by differences in non-notary costs of registering property. The authors also find that GDP per capita and presidential as opposed to parliamentary political system are highly correlated with lower registration costs. The authors provide plausible explanations for these findings.

Patients' Racial Preferences and the Medical Culture of Accommodation

Abstract: One of medicine’s open secrets is that patients routinely refuse or demand medical treatment based on the assigned physician’s racial identity, and hospitals typically yield to patients’ racial preferences. This widely practiced, if rarely acknowledged, phenomenon — about which there is new empirical evidence — poses a fundamental dilemma for law, medicine, and ethics. It also raises difficult questions about how we should think about race, health, and individual autonomy in this context. Informed consent rules and common law battery dictate that a competent patient has an almost-unqualified right to refuse medical care, including treatment provided by an unwanted physician. Yet the accommodation of patients’ racial preferences with respect to their choice of physician in the hospital context appears to violate antidiscrimination principles. How should we reconcile this apparent conflict between respect for patient autonomy and accepted notions of racial equality? Moreover, is the accommodation of patients’ racial preferences the type of invidious discrimination that civil rights laws were enacted to prevent?This Article engages these questions through an evaluation of antidiscrimination norms, principles of medical ethics, and federal laws, including Titles II, VI, and VII of the Civil Rights Act. In so doing, the Article offers critical insights into why a form of discrimination that is prohibited in other contexts is tolerated in the hospital setting and draws important conclusions about the legal propriety and medical efficacy of this practice. The Article contends that the various titles of the Civil Rights Act offer no clear legal directive on this practice, and it makes the counterintuitive claim that although hospital accommodation of patients’ racial preferences appears to contravene antidiscrimination principles, it is not only consistent with our normative commitments to racial equality but, in fact, constitutes an effective means of alleviating race-based health disparities, improving health outcomes, and quite possibly, saving patients’ lives.

The Islamic Legal System in Malaysia

Abstract: I.IntroductionBetween 1957 and 1963, a number of colonized states in peninsular Malaysia and Northern Borneo united to form the new, independent Federation of Malaysia.1 The legal system in the independent Federation of Malaysia reflected the plural model that had emerged in Britain's Malay colonies. Most areas of life were to be regulated by a common body of federal law. Federal law at the time of independence was based primarily on British models. A few aspects of Muslim life, however, were to be regulated not by federal law but by state Islamic-based law referred to locally as Syariah law. In this context, the states were permitted to establish their own state Islamic court systems, known locally as Syariah courts, to apply this law.As part of the global wave of Islamization that has taken place since the 1970s, some factions in Malaysia have called for an expansion of the role of Islamic law in the Malaysian legal system. Some have called for the federal government to revise federal law in order to make it more consistent with Islamic norms. This approach has had, at best, mixed success. Others have urged Malaysia's state governments to take advantage of a constitutional provision allowing them to regulate the lives of Muslims within their borders according to Islamic law. The champions of this approach have been more successful, and various states have interpreted their powers under these provisions ever more broadly over recent decades. They have established increasingly large bureaucracies, issuing and enforcing an expanding range of Islamic statutes. State governments have also invested heavily in establishing and regularly "upgrading" the state court systems that have jurisdiction over cases arising under Islamic law. The federal government has accepted the growing role of Islamic law, as defined by the sub-national state governments of Malaysia, and the growing power of the state courts that apply this law. Indeed, the Federal Constitution has recently been amended to strip from the federal courts most of their traditional powers to hear appeals from state Syariah courts.2In each of the sub-national states of Malaysia, significant parts of Muslim life are now regulated by Islamic laws developed by the governments of that state and applied by Islamic courts established by it. Thus, while attempts to "Islamize" federal law have been less than fully successful, attempts to carve out an autonomous Islamic area of the legal system have been more successful. This article will describe the evolving nature of the legal systems in the areas that now make up Malaysia from the colonial period to the present. Noting that different states in Malaysia have developed somewhat different interpretations of Islamic law and somewhat different systems of enforcing it, it will also describe the institutions that are trying to promote further harmonization. This article will thus provide useful background for those reading the subsequent articles in this special issue-articles which discuss in detail the increasingly homogenized forms of training that judges and lawyers in the state Syariah courts today undergo.II. The Evolving Role of Islamic Law in MalaysiaMuslim sailors and traders have been a presence in trading ports across Southeast Asia, including the Malay Peninsula, since the early centuries of Islamic history. By the end of the thirteenth century, the first Islamic sultanate was established in the region. Over the centuries that followed, other Muslim port polities were established across the region.3 Our knowledge of the political and legal systems of these sultanates is severely limited by a lack of primary sources. The few extant documents that do survive from the early period suggest, however, that in a number of sultanates on the Malay Peninsula various forms of Islamic law came to be applied to resolve some disputes within the sultanates.4 European travelers and British officers also reported that some substantive rules of Islamic law were applied in the Malay sultanates. …