Comparative Law Works in Progress Workshop (Feb 2009): Call for Papers

CALL FOR PAPERS

Fourth Annual Comparative Law Works in Progress Workshop
February 6-7, 2009
Held at Princeton University

Sponsored by:
American Society of Comparative Law
University of Michigan Law School
University of Illinois College of Law
Princeton University, Program for Law and Public Affairs

Mathias Reimann (University of Michigan Law School), Jacqueline Ross (University of Illinois College of Law), and Kim Lane Scheppele (Princeton University, Program for Law and Public Affairs) are calling for paper submissions for the Third Annual Comparative Law Works in Progress Workshop which will take place at Princeton University from February 6-7, 2009. The arrival date would be February 5. This workshop will co-sponsored by the American Society of Comparative Law.

There is no regular opportunity for comparative law scholars in the United States to meet and discuss their work in any depth. The scholarly programs of the meetings of the American Society of Comparative Law are chosen and organized by the respective host schools and aim at the presentation of finished papers on a given topic. While there is some opportunity to present work in progress, there is little opportunity for sustained discussion.

The meetings of the Comparative Law Section at the AALS Conference each January are also dedicated to a specific topic and usually exhaust themselves in the presentation of papers with little substantive discussion. There is thus a need for a forum in which comparative law work in progress can be explored among colleagues in a serious and thorough manner that will be truly helpful to the respective authors.

The Annual Comparative Law Works-in-Progress Workshop is intended to fill that need. It will involve up to six papers during a two-day period. If more than six papers are submitted for discussion, the organizers will jointly decide which ones to accept, giving preference to younger scholars.
The participants will consist of the respective authors, one commentator on each paper, faculty members of the host institution, particularly those with expertise in comparative law and research, and others interested in attending. The overall group will be kept small enough to sit around a large table and to allow serious discussion (20 people maximum). The papers will not be presented at the workshop. They will be distributed two weeks in advance and every participant must have read them before attending the meeting. The commentator will present a 10 to 15 minute introduction and critique, leaving at least one hour for discussion. There are no plans to publish the papers. Instead, it is up to the authors to seek publication if, and wherever, they wish.

The Fourth Annual Comparative Law Workshop will take place on February 6-7, 2009 at the Princeton University. The Workshop will be funded by the host school and by the American Society of Comparative Law (ASCL). Authors of papers and commentators from ASCL member schools will be reimbursed for their travel expenses and accommodation up to $600.00, in accordance with the ASCL reimbursement policy (as posted on its webpage), though only up to six authors and commentators will be reimbursed by the ASCL. (Princeton University will reimburse the remainder.) The ASCL’s policy provides that reimbursement is available only if the applicant cannot obtain reimbursement from his or her home school.

Interested authors should submit papers electronically to Kim Lane Scheppele (kimlane@Princeton.EDU) by December 31, 2008. We will inform them of our decision by early January, 2009. "Work in progress" means scholarship that has reached a stage at which it is substantial enough to merit serious discussion and critique but that has not yet appeared in print (although it may have been accepted for publication. It includes law review articles, book chapters or outlines, substantial book reviews, and other appropriate genres.Our objective is not only to provide an opportunity for the discussion of scholarly work but also to create an opportunity for comparative lawyers to get together for two days devoted to nothing but talking shop, both in the sessions and outside. We hope that this will create synergy that fosters more dialogue, cooperation, and an increased sense of coherence in a discipline badly in need of it.

Signed: Mathias Reimann, Jacqueline Ross, Kim Lane Scheppele

Kessler on Conciliation in 19th century Europe and the US

Amalia Kessler (Stanford Law) has posted 'Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication' on SSRN (Theoretical Inquiries in Law, 2009 forthcoming). (The paper was posted back in August, but only notified on the Stanford Working Paper Series last week). This is the abstract:

A sizeable body of literature suggests that informal methods of dispute resolution - and, in particular, conciliation - flourish only in societies marked by extensive social hierarchy. Given this literature, it is quite surprising to discover that in the mid-nineteenth century, the United States embarked on an extensive debate regarding whether to adopt conciliation courts, whose primary function was to reconcile the disputants by persuading them to embrace an equitable compromise. First created by the French Revolutionaries in 1790, conciliation courts were widely established throughout continental Europe. Observing this development, leading American lawyers and politicians - anxious to respond to public complaints about the costly nature of litigation and the growing power of the legal profession, and seeking a solution to the deep social rifts threatened by new forces of urbanization and industrialization - pondered seriously whether the United States ought to follow suit. Debate over whether to embrace such institutions occurred at the very highest of levels - including at the New York Constitutional Convention of 1846, now more famously remembered for giving rise to the Field Code. And a series of states enacted constitutional provisions authorizing their legislatures to create conciliation courts. Ultimately, however, despite the widespread interest in such institutions, these were never meaningfully established - except in the notable case of the Freedmen's Bureau courts of the Reconstruction south. This paper explores this largely forgotten episode in American legal history. It examines why a nation that was radically egalitarian by standards of the time would seriously consider embracing an institution that we tend more commonly to associate with inegalitarian, strongly hierarchical societies - and why, after coming so close to adopting conciliation courts, it ultimately failed to do so. In the process, by situating the debate over conciliation courts in a broader social and legal context, the paper also excavates the origins of the modern, quintessentially American commitment to the virtues of formal, adversarial legal process.

This is comparative legal history on a scale so grand that readers are sure to take issue with at least some details of Kessler's claim. But the argument presented, and the potential for the episode discussed to illuminate persistent questions about American 'distinctiveness', would seem easily to warrant the broad perspective taken. One objection at least that I personally thought might undermine Kessler's thesis, namely that wanting conciliation and successfully implementing conciliation may be two very different things, in particular when it comes to causal explanation, is dealt with to some extent in a footnote that may be worth quoting here (no 11):

"There is a difference, moreover, between a society’s desire to adopt informal methods of dispute resolution (including conciliation) and its ability successfully to do so. A closer reading of the evidence may well show that whatever a society’s reasons for seeking to embrace conciliation, the technique proves successful only to the extent that disputants can be persuaded to defer to the judge’s authority and that this, in turn, is most likely to occur in close-knit communities marked by clear, deeply embedded social hierarchies. Along these lines, it is striking that the French conciliation courts were directly descended from (and in many ways replicated) the seigneurial courts of the corporatist Old Regime".

I'm not fully sure this is the end of this particular difficulty, but Kessler's argument is undoubtedly facinating.

Customary law and Constitutional Law in Africa (New Papers: Tebbe & Andrews)

Two new papers on SSRN deal with the interrelationships between constitutional law, customary law and tradition in Africa. Penelope Andrews (Valparaiso) has posted 'Who's Afraid of Polygamy? Exploring the Boundaries of Family, Equality and Custom in South Africa' on SSRN (Utah L Rev, 2009). The abstract:

South Africa's post-apartheid constitution has been widely admired and constantly referenced by international scholars, and especially international human rights scholars, for its comprehensive embrace of gender equality. But the commitment to gender equality has been tested by other liberatory discourses, including African nationalism and cultural and religious autonomy. My paper will examine the evolution of South African legislation and constitutional jurisprudence in the face of competing imperatives, for example, between equality, legal pluralism, customary law/religious law, and the recognition of polygamy. In particular, I will focus on the Recognition of Customary Marriages Act (the Act), a statute that purports to regulate customary marriages, including the establishment of such marriages, as well as their termination. I evaluate the influence of this statute, if any, on gender equality, and whether its purported protection of women in polygamous marriages, in fact results in such protection.

Nelson Tebbe (Brooklyn Law School), for his part, has posted 'Inheritance and Disinheritance: African Customary Law and Constitutional Rights' on SSRN (Journal of Religion, 2008). This paper's abstract:

This Article concerns the conflict between African traditional rules of inheritance, which feature a rule of male primogeniture, and the post-apartheid constitution, which contains a strong guarantee of gender equality. While that guarantee must ultimately be enforced by the judiciary, this Article argues that the South African Constitutional Court's recent decision to strike down the central African customary rule for property inheritance carries a greater danger of backlash than has commonly been recognized. That risk is particularly grave under current political conditions, which are seeing a shift toward Africanization. Enduring change might more profitably be achieved by Parliament, by provincial and local governments, and by local communities themselves. A recent decision concerning inheritance of the chieftainship suggests that some African communities are already harmonizing customary law and progressive constitutional values. The Article ends by suggesting an approach that incentivizes localized reform, rather than commanding it in the first instance.

Sitaraman on the 'Use and Abuse of Foreign Law in Constitutional Interpretation'

Ganesh Sitaraman (Harvard Law) has posted 'The Use and Abuse of Foreign Law in Constitutional Interpretation' on SSRN (Harvard J of Law and Public Policy, forthcoming). This is the abstract:

This article provides a typology of the uses of foreign law in order to provide insight into whether foreign law can be appropriately used in constitutional interpretation, when, and what the stakes and parameters are in each case. Much of the commentary on foreign law usage has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured a more basic question - the ways in which foreign law can be used, that is, the how of foreign law. Focusing on the why of foreign law threatens to generalize arguments into debates on foreign law when it may be more helpful to debate particular methods of foreign law usage. Some methods of use may be more easily justified and others totally unjustifiable. Some scholars have recognized the need to focus on the how of foreign law, but they have identified only a limited set of ways in which foreign law could be used. This limited categorization of foreign law usage prevents clear evaluation of which uses are appropriate. The article's typology demonstrates that most uses of foreign law are not problematic, and as a result, that the foreign law debate should focus specifically on the few uses that are potentially problematic, rather than on foreign law more generally.

As the author himself says: "these days, everyone has something to say about the use of foreign law in constitutional interpretation". Much of the relevant American literature is dominated by the US perspective to such an extent that the main lines of argument are often difficult to follow for outsiders (like myself). Sitamaran's paper, too, is focussed on the US, but his views do have a broader application. And whether you agree with his typology or not, the emphasis on the 'how' question of the use of foreign materials is certainly very welcome.

Köbler in the English Courts: Cooper v Attorney-General

The Times today reported a decision of Mr Justice Plender in the case of Stephen Cooper v Attorney-General (Judgment of 30 September 2008) in the English High Court (The Times, 7 October 2008, 'When judicial error in EC law gives rise to damages'). This is thought to be the first claim brought in the UK for damages based on the cause of action developed by the ECJ in the case of Köbler v Republik Österreich (Case C-224/01).

The claim concerned two judgments of the Court of Appeal of 1999 and 2000, in which the Council for the Protection of Rural England, of which the claimant was a trustee of the London branch, had been refused judicial review of decisions by local authorities in London (R. v London Borough of Hammersmith and Fulham [2000] 2 C.M.L.R. 1021).

According to The Times, "His Lordship (...) deduced from Köbler, Traghetti del Mediterraneo SpA v Repubblica Italiana (Case C-173/03) ([2006] ECR I-5177 and Gestas, an as yet unreported case of the French Conseil d’État, May 19, 2008, that member states had to make good damage caused by individuals by infringements of Community law for which they were responsible, even where the infringement stemmed from a decision of a court adjudicating at last instance, provided that three conditions were met: (i) the rule of law infringed must be intended to confer rights on individuals; (ii) the breach must be sufficiently serious and state liability could not be confined only to cases concerning intentional fault or serious misconduct; and (iii) there must be a causal link between the breach of obligation and the loss or damage sustained by the parties".

Murkens on Comparative Constitutional Law in the Courts

Jo Murkens (LSE Law Department) has posted 'Comparative Constitutional Law in the Courts: Reflections on the Originalists' Objections' on SSRN as an LSE Legal Studies Working Paper (No. 15/2008). This is the abstract:

The controversy surrounding the judicial use of comparative constitutional law is not new. However, the debate has recently been reignited by a number of US Supreme Court justices who have spoken out on the use of non-US law in the Court. Scalia opposes, and Breyer favours, references to 'foreign law'. Their comments, made both within and outside of the Court, have led to a reaction by scholars. Arguably the debate is US-specific as it resembles the different views regarding constitutional interpretation, namely whether the Constitution's original, or rather its current, meaning is determinative. Yet the debate also raises broader issues of constitutional theory and politics: formal vs substantive legitimacy, globalisation of the courts, judicial sleight of hand, the cultural foundations of constitutional law, and the citation of non-primary sources of law in litigation. The present article explores these issues. It rejects radical approaches (either against or in favour of comparative constitutional law) and instead argues for a more modest process which both identifies the national specificity of law and grasps the mediating potential of law as a self-reflexive discourse.

Valcke on Convergence and Divergence in Contract Law

Catherine Valcke (U Toronto Law) has posted her European Review of Private Law article 'Convergence and Divergence between the English, French, and German Conceptions of Contract' on SSRN (University of Toronto Legal Studies Research Paper, No. 08/14). This is the abstract:

This piece aims to highlight the different internal and external perspectives on the English, French, and German law of contractual mistake. While the solutions devised by these three systems in response to mistake issues are functionally equivalent, it is possible to reconstruct the different means internally deployed by each system to reach these solutions into (different) coherent forms of argumentation. Depending on whether one takes an internal or an external perspective, therefore, one could conclude that the three systems are simultaneously converging and diverging.

This is an innovative contribution to the often exceedingly mono-dimensional convergence/divergence debate in European private law. Valcke again - see also her article 'Comparative Law as Comparative Jurisprudence' in 52 Am J Comp L 713 (2004) - demonstrates the importance of integrating multiple perspectives and objects of comparison when engaging in comparative research. Recommended.

The Judicial Systems of the EU Member States (ECJ Research and Documentation Service)

The Research and Documentation Service of the European Court of Justice has published a very useful overview of the judicial systems of the EU Member States, entitled 'Les Juridictions des États Membres de l’Union Européenne: Structure et Organisation', which is available free online, and as a book from the EU Bookshop. The book includes detailed country reports, graphic overviews of judicial systems and appeals procedures, and guides for further reading (all in French). A very handy source of information indeed.

Hat-tip: Felix Ronkes Agerbeek.

Templates for Thinking about Religion and Pluralism: New Papers (B. Berger / R.A. Kahn / E.J. Bomhoff & M. Gu)

There's a number of interesting new papers on SSRN that discuss issues related to pluralism and religion. Specifically, each paper deals with a variant of the basic question of what broad 'template' - in terms of conceptual schemes, historical analogies etc. - may be best suited for current thinking about the accomodation of religious difference within constitutional orders.

First, Benjamin Berger (University of Victoria) has published his article 'The Cultural Limits of Legal Tolerance' (Canadian Journal of Law and Jurisprudence 2008). This is the abstract:

This article presents the argument that our understanding of the nature of the relationship between modern constitutionalism and religious difference has suffered with the success of the story of legal tolerance and multiculturalism. Taking up the Canadian case, in which the conventional narrative of legal multiculturalism has such purchase, this piece asks how the interaction of law and religion - and, in particular, the practices of legal tolerance - would look if we sought in earnest to understand law as a component, rather than a curator, of cultural diversity in modern liberal societies. Understanding the law as itself a cultural form forces us to think about the interaction of law and religion as an instance of cross-cultural encounter. Drawing from theoretical accounts of cross-cultural encounter and philosophical literature about the nature of toleration, and paying close attention to the shape of Canadian constitutional doctrine on religious freedom (law's rules of cross-cultural engagement), this paper suggests that legal toleration is far less accommodative and far more assimilative than the conventional narrative lets on. Influential alternative theoretical accounts ultimately reproduce this dynamic because they similarly obscure the role of culture on both sides of the encounter of law and religion. Indeed, owing to the particular features of the culture of law's rule, even the more thickly cultural "solutions" proposed in dialogic theory ultimately fail. In the end, this article exposes the very real cultural limits of legal tolerance.

An analysis of historical 'templates' can be found in Robert A. Kahn's (U St. Thomas School of Law) paper 'Are Muslims the new Catholics? Europe's Headscarf Laws in Comparative Historical Perspective' (U St. Thomas Legal Studies Research Paper 08/26). The abstract:

European opponents of the headscarf often view themselves as engaged in a "struggle against totalitarianism." This paper explores an alternative framing: What if Muslims - rather than Nazis or Communists in training - are the more like nineteenth century Catholics, who were seen as a religious threat to European (and US) liberalism? To explore this idea, my paper looks at the headscarf debate through the lens of the German Kulturkampf (1871-1887) and nineteenth century US laws that banned public school teachers from wearing clerical garb. I reach two tentative conclusions. First, many of the claims made against European Muslims - especially about the "backward" nature of the religion - were also made against Catholics. Second, just as the Kulturkampf (and US clerical garb laws) failed to create a new "modern" Catholic, headscarf laws will not create Islamic moderates. However, the ultimate incorporation of Catholics in the years after 1945 suggest a more hopeful future - one that will come quicker if there is less legal repression.

An empirical study nuancing the Muslims/Catholics parallel, finally, can be found in a new paper by Eduard J. Bomhoff and Mary Gu (both Nottingham Univ. - Malaysia Campus), entitled 'Malaysia's Muslims: The First World Values Survey' (Nottingham Univ. Business School Malaysia Campus Research Paper 08/10). The abstract:

In the Islamic world, Malaysia is a happy outlier: richer and politically more mature than the average of the 58 members of the Organization of the Islamic Conference. That makes it interesting to test theories of modernization for this prosperous Islamic country. In our analysis of the first World Values Survey in Malaysia, we look at questions in the following four areas: 1. Tolerance of abortion, homosexuality, prostitution, divorce, euthanasia and suicide. 2. Acceptance of the ideology of the economic market. 3. Equality between men and women. 4. Esteem for democracy. Responses on such questions show to what extent Malaysia is a "modern" country on the definition of Inglehart . We provide context by comparing the results for Malaysia to currently available WVS data for all other Islamic nations as well as a comparator group of strongly Catholic countries. For the questions on tolerance of abortion etc., we find both in Islamic and in Catholic countries, that more religious people adhere to the traditional views of their religion. For the other three groups of questions, however, the association in most Islamic nations is strikingly different from the pattern in the Catholic countries: many of the strongly religious Muslim respondents exhibit openness to gender equality, and keenness for democracy and the laws of the market which are significantly greater than the average for their nation. We also find that the often-mentioned link between more education and a more "modern" outlook holds for the Catholic countries but is an inappropriate generalization for the Islamic world.

Tridimas and Gutierez-Fons on ECJ Kadi & Al Barakaat

Takis Tridimas and Jose Gutierez-Fons (both Queen Mary, London) have what must surely be the first commentary on the ECJ's important Kadi decision (joined cases C 402/05 and 415/05) of earlier this month (Fordham International Law Journal, forthcoming; now available on SSRN. Hat tip: LegalTheoryBlog).

This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI. In its judgment under appeal, the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organisations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI's approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some scepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the "emergency constitution" at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU's distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyses the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognising the importance of public security.

Note: The InternationalLawObserver Blog has a very good summary of the Kadi decision.

'Judicial Balancing' and Difference

A small plug, if I may: over the summer, I've published an article on the position of 'judicial balancing' in relation to comparative law methodology in the Hastings International and Comparative Law Review. The paper, entitled 'Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law', is available on SSRN. The paper argues for more attention to the possibility of salient differences among the many manifestations of 'balancing discourse' in decisions of courts from around the world. This was the abstract:

Courts in Europe, North-America and elsewhere frequently use the language of 'balancing' when dealing with fundamental rights cases. In addition, judges and scholars increasingly often rely on the image of balancing, or 'weighing', to draw (self-)portraits of legal cultures and to frame contrasts and similarities between legal orders. This article argues that this form of discourse occupies a particularly problematic position as a topic of comparative constitutional law, and this for two primary reasons.

First, while balancing references, as legal arguments, function primarily to justify the exercise of judicial power in particular - local - settings, their legitimizing force depends to a large extent on explicit and implicit appeals to values that are understood to transcend the local, such as rationality, fairness and reasonableness. The ways in which balancing references voice these appeals, moreover, can be shown to differ between legal systems. These complex ambivalences place balancing squarely in between the two main competing models for comparative legal studies. Second, balancing references, in many of the ways they figure in legal discourse, habitually transcend familiar categories of legal thought, such as doctrine or principle, or traditional conceptual divisions, such as form/substance and legal/political. This means that a number of commonly relied-upon abstractions are not easily available for comparative investigations of this particular topic.

The article argues that these two sets of difficulties in situating balancing in terms of traditional comparative law approaches have contributed to an overemphasis on similarities and a comparative neglect of differences in local manifestations of balancing discourse. Underscoring the suggestion that the very idea of balancing can mean different things in different places, the article claims, will be essential in developing of a richer understanding of the legitimizing force of a type of discourse that has become crucial in fundamental rights adjudication.

(The article is part of an ongoing project, so comments are particularly welcome)

Legrand on Comparative Legal Studies and Authenticity

Pierre Legrand (San Diego, Paris Pantheon-Sorbonne) has posted his overview article 'Comparative Legal Studies and the Matter of Authenticity', dealing with "salient theoretical issues in comparative legal studies" (that's the abstract, I'm afraid) and originally posted in Vol. 1 of the Journal of Comparative Law, on SSRN, as a San Diego Legal Studies Research Paper (No. 08/71). This is the Table of Contents:

I Premises
II Culture, Then
III Selected Aspects of Comparative Orthodoxy (Such as Truth)
IV The Orthodoxy Applied, Recently and Prominently
V Critique (Part One)
VI Critique (Part Two)
VII Working Towards Another ‘Model’

And from the 'Premises':

Engaging in hubristic programmes that engender a hasty and frenetic search for commonalities-which-clearly-must-be-there-since-we-want-them-there, ‘the comparati[st] presumes similarities between different jurisdictions in the very act of searching for them’. Now, the ‘sameness’ across different laws that comparative research postulates is necessarily based on the repression and exclusion of pertinent differences located in the matrix within which any manifestation of posited law is inevitably ensconced.

The condition of the comparatist is primordially being-towards-another-law such that the notion of ‘relation’ must lie at the heart of any comparative endeavour. Now, we know that ‘[relation] secures the difference of things, their singularity’. Only in deferring to the non-identical, to what is the case in advance of any theoretical elaboration, can the claim to justice be redeemed. Coming to the matter of ‘sameness’ as comparatist —and, therefore, as someone who values diversity as a good and who is prepared to affirm it as a good (although not as a good that will always trump other goods)16 — I can only resist the drive towards uniformity by emphasising, explaining, and justifying singularity, that is, by incessantly reiterating the existence of discrepant epistemological reservoirs of ideas which between them allow communities and individuals to recognise the legal-cultural forms inscribed over the long term that resonate with their sense of identity (including spheres of ‘alternative’ law that have deliberately fashioned themselves as legitimate modes of conflict resolution).

Differential thinking is characterised by its thorough immanence to actualised, real, and, therefore, discontinuous experience, such that if difference is denied, it is life and existence themselves that are denied. Differential thinking thus attests to ‘a gnawing sense of unfulfilledness, [an] endemic dissatisfaction with itself’. It is ‘haunted by the suspicion’ that it is never differential enough. Comparative legal studies must be a practice animated by the conviction that any encounter worth the name must assume encountering the other in all of the other’s singularity and recognising this singularity (...).

Chesterman on the Globalization of Legal Education

Simon Chesterman (NYU Law) has posted 'The Globalization of Legal Education' on BePress (Singapore Journal of Legal Studies, forthcoming). This is the abstract:

This article examines the evolution of legal education as it has moved through international, transnational, and now global paradigms. It explores these paradigms by reference to practice, pedagogy, and research. Internationalisation saw the world as an archipelago of jurisdictions, with a small number of lawyers involved in mediating disputes between jurisdictions or determining which jurisdiction applied; transnationalisation saw the world as a patchwork, with greater need for familiarity across jurisdictions and hence a growth in exchanges and collaborations; globalisation is now seeing the world as a web in more ways than one, with lawyers needing to be comfortable in multiple jurisdictions.

Hesselink on Fairness and Social Justice in European Private Law

Martijn Hesselink (University of Amsterdam) has posted 'CFR & Social Justice: A short study for the European Parliament on the values underlying the Draft Common Frame of Reference for European Private Law - What roles for fairness and social justice?' on SSRN (Center for the Study of European Contract Law - CSECL - Working Paper 2008/08). This is the abstract:

The draft Common Frame of Reference is likely to play a prominent role in the further development of European contract law. Therefore, with a view to its acceptability it is crucial to assess the draft from the point of view of social justice.

The DCFR has all the characteristics of a typical European compromise. Ideological and esthetical purists will certainly be disappointed. This is not necessarily something to be worried about. A common frame of reference is not drafted, in the first place (if at all), for esthetical or ideological reasons; it is meant to provide some normative guidance in the further development of European contract law. European citizens have very different interests, preferences and opinions in relation to almost all the subjects dealt with in the DCFR. A DCFR consistently based on only one conception about the right choices would inevitably have disappointed all European citizens with a different idea of social justice in European private law. Therefore, if we really want the further Europeanization of private law we will have to accept that it will probably look rather different from both the particular Member State law that each of us is familiar with and our personal ideas of social justice. The publication of the interim outline edition of the draft CFR, which is the result of a close collaboration between hundreds of legal scholars from all Member States, has brought that message home. The characterisations of the DCFR as 'a law for big business and competent consumers' or, alternatively, as a 'massive reduction of private autonomy' are both unfounded. Overall, from the point of view of social justice, the DCFR is fairly balanced. Nevertheless, there is certainly room for improvement.

Even if the DCFR is going to remain only a soft law instrument it is still likely to have a considerable influence on the further development of private law in Europe and will therefore also affect, directly or indirectly, the lives of all European citizens. For this reason it is crucial that European citizens will not only be the addressees of the CFR, or of the legislative measures based thereon, but can also rightly consider themselves as its authors. After the drafting by legal experts and the rather one-sided 'stakeholders'' input that were both organised by the European Commission it is now time for the citizens' voice. Only a meaningful input from the European and national Parliaments can provide the final CFR with the regulatory legitimacy that it needs.

The level of consumer protection in the DCFR is sufficiently high for it to be acceptable as the content of an optional instrument, which could be made applicable, for example, by clicking on a 'blue button'. However, as an absolute maximum beyond which the Member States would not be allowed to go in the case of full harmonisation, it is submitted, the level of protection in the DCFR is insufficient. Moreover, the DCFR draws a sharp distinction between B2C and B2B contracts. It categorically excludes from the protection that it grants to consumers all businesses, even the smallest ones that may be as vulnerable as consumers (or even more so) when it comes to a lack of information, inexperience and dependence. This sharp distinction deviates from the law in many Member States, is not required by the EC Treaty (which is relevant with a view to the CFR's role as a toolbox for revising the acquis and for drafting new acquis), and is potentially contrary to the fundamental principle of justice that any distinction between groups of people should favour the least privileged.

General private law - the bulk of the model rules contained in the DCFR - cannot be said to be 'neoliberal' as the Social Justice Group feared it would. Nor is it 'socialist' as some business stake holders warned for. It strikes a balance between autonomy and solidarity that is quite similar to the ones drawn in the modern private laws (including the case law, i.e. not merely the civil codes) of the Member States. However, where the DCFR deviates from the Principles of European Contract Law (PECL) it is always in the liberal direction.

Throughout the last Century general clauses, such as good faith, have played a prominent role in promoting social justice in private law in the Member States. In fact they became delegations of law-making power to the courts in order to allow them to find just and fair solutions in new cases. This tradition was codified in the PECL. However, in the DCFR the role of good faith is narrower and deliberately so. From the point of view of social justice it is important that in the final CFR the role of good faith as an undisputed legal basis for judge-made law should be restored.

The catalogue of underlying values and principles, that is meant to become the preamble to the final CFR and is likely to play a crucial role in the interpretation and further development of the CFR, brings back to the foreground some fundamental values that have played a prominent role in private law making in the Member States but that have been overshadowed, on the European level, by the narrow focus on market building. Having said that, the list of values in the DCFR could be framed so as to be more balanced. In particular, the privileged position of party autonomy as the only principle that is also contained in the black-letter model rules seems unjustified.

Clark on the Legal Profession in China

Gerard J. Clark (Suffolk U Law School) has posted 'An Introduction to the Legal Profession in China in the Year 2008' on SSRN (Suffolk University Law Review 2008, p. 833). This is the abstract:

In the last 25 years, prompted by rapid economic growth and the demands of the World Trade Organization, China has had to create a legal system and a legal profession out of whole cloth. The development has been dramatic indeed with 300 new law schools and over 200,000 law students. These students will help: to populate the vast Chinese and international law firms that are springing up in the major cities; to service the demand for legal services from China's growing newly affluent middle class; and, to serve in the courts and the government under the leadership of the Communist Party. But the Party's embrace of the rule of law has been somewhat ambivalent and the Chinese tradition of valuing social harmony make litigation and the assertion of rights a somewhat unwelcome intrusion. The problems of corruption and influence pedaling are far from solved. Modernization runs forward and the Party, the government and the legal profession try to keep pace. This piece is an introductory survey of the profession as it was found during a one semester stint at Tsinghua University in Beijing in the Spring of 2007 as a Fulbright lecturer.

(Note: Clark earlier wrote an introduction to the legal profession in another communist state: Cuba. See 23 Suffolk Transn. L. Rev. 413 (2000))