Topic
Common law
About: Common law is a research topic. Over the lifetime, 30135 publications have been published within this topic receiving 280701 citations. The topic is also known as: judicial precedent & judge-made law.
Papers published on a yearly basis
Papers
More filters
TL;DR: In this paper, the design of legal principles and procedures for court decision-making in civil litigation is analyzed, where the objective is the provision of appropriate incentives for potential tort-feasors to exert care, when evidence about care is imperfect and may be distorted by the parties.
Abstract: We analyze the design of legal principles and procedures for court decision-making in civil litigation. The objective is the provision of appropriate incentives for potential tort-feasors to exert care, when evidence about care is imperfect and may be distorted by the parties. Efficiency is shown to be consistent with courts adjudicating on the basis of the preponderance of evidence standard of proof together with common law exclusionary rules. Inefficient equilibria may nevertheless also arise under these rules. Directing courts as to the assignment of the burden of proof is then useful as a coordination device. Alternatively, burden of proof guidelines are unnecessary if courts are allowed a more active or inquisitorial role, by contrast with that of passive adjudicator.
74 citations
TL;DR: In international law, the stare decisis rule has been excluded since 1922, but permanent jurisdictions constantly refer to their previous decisions as discussed by the authors, which translates into the concept of jurisprudence constante in Roman-German Law.
Abstract: In national legal systems, precedent constitutes the starting-point of judges' reasoning. Most of the time, judges hew closely to precedent for purposes of legal certainty and for fear that their decisions might be challenged before higher instances. This practice translates into the stare decisis rule in Common Law, and into the concept of jurisprudence constante in Roman-German Law. In international law, the stare decisis rule has been excluded since 1922, but permanent jurisdictions constantly refer to their previous decisions. Nonetheless, the former are still led to reassess their jurisprudence by various methods in order to take into consideration the evolutions of the law and of international society. Regional jurisdictions are more inclined to do so than global ones. As for arbitral tribunals, they have recourse to legal precedents in a very variable manner according to the area: interstate relationships, international trade, investment or sport. Furthermore, the increase in the number of courts and arbitral institutions introduces the question whether precedents from one dispute settlement institution are relevant to others. The question arises when two courts or tribunals apply the same national law or treaty and when they apply general international law. The challenge is to navigate between two risks: that of jurisprudential incoherence and that of government by judges. Legal precedent in international dispute settlement is neither to be worshipped nor ignored.
74 citations
Journal Article•
TL;DR: The early years of the World Trade Organization (WTO) and the European Court of Justice (ECJ) have been studied in this paper, where the authors discuss the convergence and divergence in international trade law.
Abstract: Introduction: Cain and Abel - Convergence and Divergence in International Trade Law 1. EC External Commercial Policy after Amsterdam: Authority and Interpretation within Interconnected Legal Orders 2. Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence 3. The European Court of Justice and the WTO: Problems and Challenges 4. On Kith and Kine (and Crustaceans): Trade and Environment in the EU and WTO 5. The North American Integration Regime and its Implications for the World Trading System Epilogue: Towards a Common Law
74 citations
TL;DR: The margin of appreciation doctrine of the European Court of Human Rights is still to some extent mysterious as discussed by the authors, despite being repeatedly used by the ECHR since its inception in the 1990s.
Abstract: The doctrine of the margin of appreciation, despite being repeatedly used by the European Court of Human Rights, is still to some extent mysterious. Given the doctrine's ambiguity, this article fir...
74 citations
TL;DR: In this paper, the authors re-examine the law-finance theory relying on 33 countries in sub-Saharan Africa over the period 2004-2011 and find that legal origin significantly explains cross-country differences in financial development and economic volatility.
Abstract: We re-examine the law–finance theory relying on 33 countries in sub-Saharan Africa over the period 2004–2011. Our evidence suggests that legal origin significantly explains cross-country differences in financial development and economic volatility. More importantly, relative to civil law, English common law countries and those in Southern Africa have higher financial sector development both in terms of financial activity and banking efficiency on the back of lower volatility. While private credit bureau positively (negatively) affects financial development (economic volatility) with economically large impact for English legal legacy countries, the latter effect is contingent on the form of legal origin suggesting that, the establishment of information sharing offices per se may be insufficient in taming growth vagaries.
74 citations