Continuity and Rupture in New Approaches to Comparative Law

In the course of this conference on new approaches to comparative law; it has struck me as curious that so little has been said about the old approaches to comparative law. In such a self-conscious effort to distinguish ourselves from our predecessors, one would expect at least some articulation of distinctive criteria, if not a full-fledged manifesto of novelty. Giinter Frankenberg gave us three ideal-type identities of the comparative lawyer; David Kennedy boxed up the old approaches in his taxonomical chart. They and others have referred to the expansion of capitalist market economics and liberal democratic political structures as the materialist catalyst for opportunities to deploy comparative law. But while these may help explain the sources of renewed interest in comparative law, they have not on the whole addressed what makes the current examples of comparative legal scholarship new in approach. To the extent that the New Approaches are able to bring us to a more critical self-awareness, they also reveal in the end a deeper and more basic continuity with old comparative legal studies. The value of comparative methods has always been in forcing us into sympathetic yet critical knowledge of law in another context, thereby disrupting our settled understandings, provoking us to new judgments, and demanding our response with new decisions, commitments, and actions. If comparative law does not do that, I would submit that it is hardly worth doing at all. To be sure, it requires the painstaking work of seeking to know law, language, politics, and culture in other contexts. But if comparative law is successful in this respect, there will be many more new approaches conferences in the future that will break with our work by characterizing it as hopelessly out of touch and that in that rupture will continue the critical tradition of comparative law of which we are a part

Introduction: The Philosophies of Comparative Law

This introductory essay outlines the Special Issue’s aims and contents. After having offered a general overview of the development and state of comparative law as a discipline, it introduces the reader to the issue’s articles. The issue features articles by leading scholars and emerging researchers that make significant contributions to the academic debate on the current status and future directions of comparative legal analysis and methodologies of research. More particularly, combining theoretically-oriented essays with empirical accounts of socio-cultural, pluralist dynamics of ordering from the Global South (i.e., Latin America) and Asia (i.e., Japan), it takes a further step towards molding a body of interdisciplinary, pluralist, critical, and contextual comparative legal scholarship by (a) critically exploring what “philosophies” have been informing and shaping its development over the past few decades, and (b) suggesting possible new directions of thought for an age, such as ours, characterized by increasing regulatory density and complexity, and geopolitical instability. It is by meaningfully embracing this critical, interdisciplinary, and pluralist spirit that this Special Issue moves away from reductionist understandings of the comparative enterprise and speaks of “philosophies” of comparative law.Non peer reviewe

On Society, Law, and Judging

This paper was originally presented at the 2011 Legal Scholarship Symposium

Legal Ground Rules in Coordinated and Liberal Market Economies

Two parallel literatures have explored differences across legal and economic systems,noting that countries can be loosely grouped into liberal vs. coordinated market economies on the one hand, and common law vs. civil law countries on the other. These two groups largely overlap. Liberal market economies (LMEs) tend to have a common law tradition, while coordinated market economies (CMEs) belong to the civil law family (French or German). This paper argues that this overlap is not coincidental. The link between legal and economic systems are social preferences reffected in basic norms, or ground rules, found in substantive and procedural laws of different countries. These ground rules are more pervasive than their specific incarnation, such as codetermination in Germany, or shareholder primacy in the United States. The paper develops a typology of ground rules, distinguishing between substantive ground rules that allocate decision making rights to either individuals or to the state/collective; and procedural ground rules that determine whether the individual or a collective (or the state) have the primary or exclusive power to seek judicial remedies. The paper uses examples from contract and corporate law to illustrate these ground rules focusing on German law, as an example for the civil law family and a CME, and the US as an example for a common law jurisdiction and LME. An important implication of this analysis is that each system is highly path dependent and that, therefore, marginal changes of specific incarnations of social preferences are unlikely to fundamentally alter the nature of each system

Enforcing the Bargain v. Materiality Requirement: The Future of Disclosure-Only Settlements Post-Trulia

In In re Trulia, Inc. Stockholder Litigation, the Delaware Court of Chancery broke away from its tradition of routinely approving disclosure-only settlements and required disclosures to be material in order to cure the conflict of interest between plaintiff’s counsel and the plaintiff class. I argue that fairness of settlement is the only standard in approving class action settlements and fairness will not be achieved by requiring materiality. Shareholders are legally entitled to all material information, as the board’s fiduciary duty dictates. Thus, material disclosures are enforcement of a legal duty that is no consideration for the release of shareholder claims. On the other hand, fairness could be achieved by enforcing the bargain if the bargaining process was conducted fairly and in good faith. The agency problem and the conflict of interest between the plaintiff’s counsel and the plaintiff class can be resolved by judicial assessment on whether there was adequate representation based on the effort of the plaintiff’s counsel and the appropriate attorney fee award according to the well-established three-scale system in quantifying the appropriate attorney fees. In addition, overbroad releases can be rescinded under the contract doctrines of fraud and unconscionability if such settlements were fraudulently induced or the release is overbroad compared to the benefit that the disclosures conveyed

Inherent risk and organisational design in European tort law

This paper is devoted to a complex set of issues relating to the functions of tort law in distinguishing acceptable and unacceptable risks. Often, such risks are brought about by deliberate organisational design choice. On many occasions, legislators and courts are called upon to assess which of these design choices are acceptable and which are not. By evaluating a number of recent legislative drafts and proposals I present an out-line of what seems to be becoming a standard of „organisational liability‟ for organ-isational failure. Moreover, I put forward a threefold typology of risks in tort law which seems to go a long way in categorizing tort law cases involving organisa-tional design risks. Finally, I call the reader‟s attention to the fact that tort law is in need of rational recalibration with regard to the „ranking of risks‟, as it seems that some risks are inconsistently categorized as either acceptable or unacceptable

‘Urgenda-Style’ Strategic Climate Change Litigation in Italy: A Tale of Human Rights and Torts?

This contribution addresses the first strategic climate change litigation filed against the Italian State, the Giudizio Universale case. Giudizio Universale’s legal architecture is largely akin to other landmark cases filed in Europe, such as Urgenda in The Netherlands and Klimaatzaak in Belgium. Accordingly, Giudizio Universale is grounded on the state’s breach of international and EU obligations, the encroachment of human rights enshrined in the European Convention on Human Rights and the Italian Constitution, and the consequent attribution of domestic tort liability to the state under the Italian Civil Code. This article thus examines the main arguments raised in Giudizio Universale in light of the underlying domestic human rights and tort liability regimes. It first investigates the interplay between the breach of climate change obligations and human rights infringement as presented in the complaint to understand whether, and to what extent, Italian courts could give deference to an ‘Urgenda-style’ claim. Second, it unpacks the existing interpretation of tort liability as applied to state liability vis-à-vis its citizens by Italian courts. Third, it factors Giudizio Universale in the recent Italian Constitutional reform, which explicitly introduced the protection of the environment, biodiversity and ecosystems, as well as a reference to the ‘interests of future generations’, into the fundamental principles of the Italian Constitution. Overall, the article concludes that several limitations exist in the Italian legal system in the pursuance of strategic climate litigation against the state for its (in)action against climate change. One of the merits of the Giudizio Universale case, however, is that it challenges these limitations to provide another suitable tool for ensuring protection against the climate emergency