Comparative Law as a Bridge Between the Nation-State and the Global Economy: An Essay for Herbert Bernstein

Professor Richard M. Buxbaum delivered the Fourth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2005 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In this paper, Richard Buxbaum is primarily concerned with the potential of comparative law as a method to bridge the disparities between the laws of nation-states and the needs of the globalized economy. Buxbaum investigates three separate roles for comparative law in closing this gap: First, he discusses the potential uses of comparative law with regard to the current primacy of national law over the increasingly transnational economic order. Second, he looks into the concern surrounding the growing need for national economic laws to move up a step; here, Buxbaum pays special attention to the problems and benefits created by federalism within both the American and the European systems. Thirdly, and finally, he tackles the elusiveness of what he calls “the slippery issue of ‘economic law’”. In dealing with each of these strands of thought, Buxbaum focuses predominantly on the European Union system and how comparative law can aid in its struggle not only to unify law, but also in efforts to coordinate law between national, sovereign entities. Due to the high degree of difference in the centralization of authority in the American system over the European Union, Buxbaum is able to cast into high relief the need for comparative law within Europe in the absence of a strong legislative body. Buxbaum uses comparative law to bridge the importance of national law in a transnational order with the challenges of achieving a unified economic law between nations, despite the inherent tension between the two concepts

Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy

Analyzing a conflict of laws requires thinking both about the scope of potentially applicable law and about priority, or choice, among potentially applicable laws. The Restatement (Second) of Conflict of Laws, published in 1971, contains little guidance on how, or in what order, courts are to address these two inquiries. The draft Restatement (Third), in contrast, differentiates clearly the respective roles of the two analytical elements. It characterizes the resolution of a choice-of-law question as a two-step process. First, the scope of the relevant states’ internal laws must be determined, in order to ascertain which states’ laws might be used as a rule of decision. Second, if more than one state’s law might be used as a rule of decision, and those laws conflict, it must be decided which law is given priority. The draft defines “internal law” to include restrictions on the geographic scope of the law. However, there are two questions the draft does not answer clearly. First, is the definition of internal law meant to include only express restrictions on scope? Second, absent explicit indications of legislative intent, how is the scope of a law to be determined? In particular, should courts employ a presumption against the extraterritorial application of state law? This article begins by analyzing the role of the presumption against extraterritoriality in supplying implied restrictions on the scope of law. It considers the role of the presumption in both international and interstate conflicts of laws, and argues that the Restatement (Third) should differentiate clearly between those two contexts. It then turns to the question whether geographic scope restrictions should properly be considered part of a state’s internal law. The paper analyzes that question through the lens of a common problem: a contract dispute involving a transaction or event that falls outside the scope of the law chosen by the parties to govern their agreement. On the basis of that analysis, it concludes that forthcoming sections will need to address the implications of the draft’s categorical treatment of legislative scope

Statistical analysis of mission profile parameters of civil transport airplanes

The statistical analysis of flight times as well as airplane gross weights and fuel weights of jet-powered civil transport airplanes has shown that the distributions of their frequency of occurrence per flight can be presented approximately in general form. Before, however, these results may be used during the project stage of an airplane for defining a typical mission profile (the parameters of which are assumed to occur, for example, with a probability of 50 percent), the following points have to be taken into account. Because the individual airplanes were rotated during service, the scatter between the distributions of mission profile parameters for airplanes of the same type, which were flown with similar payload, has proven to be very small. Significant deviations from the generalized distributions may occur if an operator uses one airplane preferably on one or two specific routes. Another reason for larger deviations could be that the maintenance services of the operators of the observed airplanes are not representative of other airlines. Although there are indications that this is unlikely, similar information should be obtained from other operators. Such information would improve the reliability of the data

Building Medical Homes: Lessons From Eight States With Emerging Programs

Profiles states' progress in developing and implementing medical home programs, strategies to encourage primary care providers' adoption, and states' ability to convene stakeholders, help improve and evaluate performance, and address antitrust concerns

Mandatory Rules in Civil Litigation: Status of the Doctrine Post-Globalization

For all the scholarly attention paid to the role of mandatory rules in civil litigation, the doctrine regarding their use has never been fully developed. Certainly courts considering contracts governed by foreign law will sometimes override that law, applying a mandatory rule of the forum in its place. But in its most expansive articulation, the mandatory rules theory would also permit courts in certain circumstances to apply the mandatory law of a third country - a direction in which courts have declined to go. This article examines one of the justifications forwarded by early proponents of this more expansive approach: that ready application of foreign law would promote a form of judicial comity, effectuating the important interests of other nations. It inquires whether the international litigation climate today - in the age of globalization - might be hospitable to further development of the doctrine as a tool of judicial cooperation. It concludes that in fact the current trend is toward a contraction, not an expansion, of the doctrine, in part because forum courts increasingly forego application of even their own mandatory law in favor of party-chosen law. It suggests that arguments favoring broader application of foreign mandatory rules may be inextricably tied to political imperatives and to a base level of substantive similarity between the forum and foreign policies in question, and that for these reasons as well the doctrine will remain limited in scope

German Legal Culture and the Globalization of Competition Law: A Historical Perspective on the Expansion of Private Antitrust Enforcement

One trend developing in international competition regulation is the expansion of private antitrust litigation as an enforcement mechanism. This article examines Germany\u27s response to that trend, investigating the extent to which it has roots in the country\u27s legal and economic history. It begins by tracing the development of German competition law post-World War II - focusing in particular on the patterns of pressure and resistance within the transatlantic relationship - and identifies the emergence of an indigenous regulatory enforcement philosophy. It then turns to two recent developments that indicate the expansion of private enforcement in ways relevant to Germany\u27s domestic regulatory scheme. The first is regional: a new European Council Regulation modernizing competition law enforcement. The second is transatlantic: a series of cases that threatened to expand further the jurisdiction of U.S. courts over extraterritorial anti-competitive conduct. In both contexts, Germany strongly protested the potential undermining of its local competition enforcement philosophy. The article examines the links between that resistance and the particular historical context of German competition law. It thereby suggests more generally that the search for transnational regulatory systems capable of addressing global conduct must continue to account for the diversity of historical and cultural contexts that underpin various national regimes

Remedies for Foreign Investors Under U.S. Federal Securities Law

In its 2010 decision in Morrison v. National Australia Bank, the Supreme Court held that the general anti-fraud provision of U.S. securities law applies only to (a) transactions in securities listed on domestic exchanges and (b) domestic transactions in other securities. That decision forecloses the use of the “foreign-cubed” class action, and in general precludes the vast majority of claims that might otherwise have been brought in U.S. court by foreign investors. This article assesses the post-Morrison landscape, addressing the question of remedies in U.S. courts for investors defrauded in foreign transactions. It begins by reviewing the current case law, analyzing the approaches that courts have used in applying Morrison and highlighting certain weaknesses in the transaction-based test adopted in that case. It then investigates two potential paths for foreign investors: litigation brought in U.S. federal courts under foreign, rather than domestic, securities law; and participation in FAIR fund distributions ordered by the Securities and Exchange Commission