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Topic: Comparative Law

Unworthiness to Inherit, Public Policy, Forfeiture: The Scottish Story

John MacLeod and Reinhard Zimmermann | Symposium

The concerns addressed by the civilian rules on unworthiness to inherit (indignitas succedendi) must be addressed by any legal system.  When they arose in Scotland, responses tended to be found by the extension or development of other rules.  Even where there was reference to the idea of unworthiness, as in the Parricide Act 1594 and in Buchanan v Paterson (1704), the result was later re-conceptualized along different lines.  In recent years, the Scottish courts have been more receptive to the public policy principle that no one is to benefit from his or her own wrong, taken from the English common [...]

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Path Dependence and Legal Development

John Bell | Symposium

“Path dependence” is an important explanation in comparative law, but it also recognises that the law does develop by breaking out of the mould cast by the past.  Path dependence affects not only the legal concepts that the law uses to solve problems, but whether the law will intervene in a problem area or not.  Path dependence assumes that there is no ideal solution, but an equilibrium can be found within a particular society between the role of law and that of other social institutions.  The scope for change depends significantly on the extent to which a particular legal approach [...]

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A Friendship in the Law: David Daube and T.B. Smith

Hector L. MacQueen | Symposium

This Article is a study of the relationship between two academic lawyers of the twentieth century, David Daube and Sir Thomas Broun Smith, with particular focus on their period as colleagues at Aberdeen University in Scotland in the early 1950s.  The Article also considers their position in relation to the then-recent experience of World War II and Nazi Germany.  It highlights the importance of the relationship for the development of modern academic law in Scotland.  The Appendices publish the texts of relevant correspondence between the two men.

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English Torts and Roman Delicts: The Correspondence of James Muirhead and Frederick Pollock

John W. Cairns | Symposium

The revival of the study of Roman law in Britain in the second half of the nineteenth century was a complex development not yet fully understood.  It is evident that awareness of German scholarship in Roman law, both systematic and historical, and the development of curricula in the universities were crucial in this revival, which also influenced the writing of treatises on the common law.

This Article focuses on the publication of Erwin Grueber’s textbook on the Lex Aquilia intended for use by students in Oxford.  It places it in context and explores the reaction to it of James Muirhead, [...]

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A Clear Case of Tort Gone Wrong: A View From the Other Side of the Pond

Shael Herman | Symposium

Taking a cue from Weir’s observation that law is shaped by cultural preoccupations, perhaps we may profitably examine the march of negligence, at least in defamation actions, in terms of English and American social differences.  Social contrasts between the libel laws of the two jurisdictions are stark.  Committed to free speech protections of the first amendment, an American reader may be surprised that English practice has made a plaintiff’s showing of a defendant’s negligence adequate for their  recovery for libel.  An English lawyer’s dilution of the freedom of speech seems alien to the American counterpart:  “One person’s freedom to speak [...]

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The Method of the Roman Jurists

James Gordley | Symposium

The Roman jurists developed a method that is not like that of Greek philosophy, modern physics, or economics.  Their fundamental concepts were familiar from ordinary experience–for example, possession, fault, and consent.  They were not abstracted from experience like substance and accident, mass and energy, or supply and demand, which are understood only by those who have studied philosophy, physics, or economics.  The Romans refined and identified these concepts by putting concrete cases.  They would move from a concept to its application in a particular case all at once without explaining how they got from the one to the other. In [...]

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Convergence in Contort: Landlord Liability for Defective Premises in Comparative Perspective

Melissa T. Lonegrass | Article

The relatively recent transformation of landlord-tenant law has imported into the common law landlord-tenant relationship a number of obligations that have been recognized in civil law leases for centuries.Thus the common law’s embrace of an implied warranty of habitability closed a long-existing gulf between the two legal traditions’ approaches to the obligations of residential landlords. In both traditions today, breach of the landlord’s obligation to provide a safe and habitable dwelling gives rise to traditional contractual remedies, including termination of the lease and damages.However, the treatment of personal injuries, property damage, and nonpecuniary losses continues to differ across jurisdictional lines. [...]

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The Rome II Regulation: A Comparative Perspective on Federalizing Choice of Law

Clay H. Kaminsky | Article

This Article analyzes the Rome II Regulation, which entered into effect on January 11, 2009, and established uniform choice-of-law rules for noncontractual obligations in the European Union. Rome II is of particular interest to U.S. scholars because its federal and international character and nearly comprehensive scope make it a potential model for a new U.S. Restatement or federal statute. Beginning with its text, context, and legislative history, this Article examines Rome II in the comparative light of state-level codifications in the United States and the general theory of state-interest analysis developed during the American “conflicts revolution.” The Article tests the [...]

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The Qur’an and the Constitution

L. Ali Khan | Essay

And this Qur’an is not such as could ever be devised by anyone save God; it is a confirmation of what was [revealed] before and an exposition of Divine Text— Therein is no doubt—from the Sustainer of the Worlds.

Many have noted the sacredness surrounding the U.S. Constitution, and comparisons with the Bible are often made.

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The French Revision of Prescription: A Model for Louisiana?

Benjamin West Janke & François-Xavier Licari | Article

In 2008, the French Legislature took the necessary step and drastically reformed prescription. The general period is now shorter and unified (five years), there are new grounds for suspension (including codified contra non valentem), and a long-stop period is introduced. Louisiana has yet to make any substantial reform to prescription, and revision is long overdue.

This Article will outline the faults in Louisiana and France’s original prescriptive regimes and identify the main innovative trends in the French revision. It then will offer a critical appraisal of the French revision, endorse it as a basis for a Louisiana revision, and discuss how [...]

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