Apr 22, 2013 Caroline Bettinger-LopezFamily Law
In recent years, with the increased internationalization of the judiciary, we have witnessed growing support from advocates, policymakers, and judges for applying international and foreign law in a domestic context. To be sure, U.S. courts have demonstrated greater reluctance toward this approach than many courts in other parts of the world. As Margaret Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, has noted, “justices of some foreign constitutional courts traverse the world of global jurisprudence with an agility that leaves an American judge breathless.” But what happens when judges, intending a comparative approach, incorrectly interpret foreign jurisprudence? And even when these judges get the law right, are they looking at the right thing when they focus on comparative law rather than comparative practice? Rachel Rebouché considers these complex questions concerning international and comparative law as she tracks important global developments in abortion law over the past few decades.
Rebouché starts with a challenge to the conventional wisdom that U.S. abortion law symbolizes protection of women’s constitutional rights while German abortion law symbolizes protection of fetal constitutional rights. While that dichotomy may have been true when Mary Ann Glendon first described it in 1987, Rebouché argues, the United States and Germany have, in fact, moved in opposite directions concerning abortion law and practice and the availability of abortion services. Developments in the U.S. since Roe v. Wade have made the constitutional right to an abortion “unrealizable for many women due to restrictive state and federal laws and the absence of providers in many areas.” By contrast, abortion law and practice developments in Germany have gone in the opposite direction, expanding access to abortion, rather than limiting it in the interest of protecting fetal rights. Though a 1975 decision by the Federal Constitutional Court of Germany (“FCC”) supported protection for “unborn life,” more recent developments have prioritized access to abortion—a position that sounds in the register of women’s rights—above fetal rights. A 1993 FCC decision reiterated that abortion is an unlawful act, but eliminated criminal punishment upon demonstration of proof of counseling (which is readily available in most regions of Germany at counseling centers that tend to be pro-choice) before the twelfth week of pregnancy. Moreover, state welfare funds are available in cases of financial need, which is interpreted so generously by most regional legislatures that in some regions, the government pays for nearly every abortion. The broad availability of state-funded abortion services has led some commentators to argue that “Germany, in effect, permits abortion for any reason.” While the U.S. and German legal developments have had enormous influence on the constitutional decisions of national courts in Colombia, South Africa, Portugal, and Mexico, these latter national court decisions, Rebouché argues, have stopped short of engaging with the “implications and evolution of abortion jurisprudence in the United States and Germany.” More troublingly, these national court decisions have, at times, misinterpreted U.S. and German law. Continue reading "Comparative Pragmatism versus Comparative Formalism in the Abortion Context"
Mar 25, 2022 Jedidiah KronckeInternational & Comparative Law
I am not predisposed to scholarship written in an idealistic register. For many contemporary thinkers—in most any field—greater insight into modern political trends gravitationally pulls one toward cynicism. Some of this very cynicism encircles debates in international law that question whether idealism itself has been unwittingly complicit in bringing about the world of ever-growing inequality and retreating democratization now often centerpiece in global legal scholarship.
As such, I was not predisposed to like Six Faces of Globalization: Who Wins, Who Loses, and Why It Matters. I had long read with interest the scholarship of its two authors, Anthea Roberts and Nicolas Lamp, whose previous work has rarely been overtly optimistic about the international legal order. But Six Faces is an idealistic book to its very core and premise. Moreover, in working through a book of great ambition and intellectual agility, it is invariable to find points of disagreement, even discomfort, among its diverse insights. Yet, what is most striking about Six Faces is that throughout you can feel the authors’ dedication to finding a constructive way to be publicly facing international academics when most public spaces are thoroughly polarized and rife with contempt. It is in this reading that I found it both provocative and challenging. Continue reading "Empathy as Pragmatism: Facing the Challenges of Globalization in a Polarized World"
Apr 19, 2018 Mark KendeConstitutional Law
David Landau,
Legal Pragmatism and Comparative Constitutional Law, in
Elgar Handbook on Comparative Constitutional Theory (forthcoming 2018), available at
SSRN.
Law is a practical field. It resolves concrete disputes. Constitutional law, however, is often thought of as more theoretical than practical. For example, a common current debate in constitutional interpretation is between originalism and living constitutionalism. Both have been advocated and criticized to death. Thus, Thomas Colby and Peter Smith have argued that originalism does not consist of one overarching theory, and that it leaves many questions unanswered. Self-proclaimed originalists disagree on some major issues and acknowledge that courts must often “construct” the right answers. But William van Alstyne has emphasized that living constitutionalists also have “clashing visions.”
It is therefore a breath of fresh air to read David Landau’s forthcoming book chapter, “Legal Pragmatism and Comparative Constitutional Law.” Eschewing these sorts of rehearsed debates between theories that each contain their own brand of formalism, Landau argues that legal pragmatism is an especially useful approach to interpreting the United States Constitution. It requires judges to acknowledge the indeterminacy of constitutional interpretation, to appreciate the importance of focusing on the detailed factual, empirical, and other contextual elements of the constitutional issues presented, and to achieve the best result possible using the toolkit provided by the law, and other “eclectic” criteria. Landau also shows that pragmatism is useful in comparative constitutional law, rather than seeing it as a uniquely American approach. Continue reading "Pragmatist Constitutionalism in Comparative Perspective"
Jan 8, 2024 Ellen BublickTorts
If one party argues that another is guilty of negligence for breathing air, no court should allow that claim or defense. Why not? A court might say that breathing air is not negligent in the breach sense—it is reasonable to breathe (everyone does it) and, at least for now, its benefits outweigh its costs. Another way that a court could reject the breathing-air contention would be to say that the breathing party has “no duty” not to breathe. By saying that the party has no duty, the court would recognize an entitlement in the breather. When courts recognize that actors enjoy some entitlements in their daily lives, they cannot avoid deciding which entitlements come with the parties to court, when parties should have those entitlements, and with respect to whom they should apply.
In Professor Eugene Volokh’s important article, The Right to Defy Criminal Demands, Volokh makes the powerful claim that in both civil and criminal cases, courts implicitly do, and explicitly should, “protect defiance of criminal demands against legal liability even when such defiance can increase the risk that the criminal will harm third parties.” (P. 416.) The issue is one of principle. Volokh calls it a “right,” though in a Hohfeldian sense it may be a privilege/liberty or no-duty rule. Continue reading "The Rights That Come With Us to Court: No-Duty Rules for the Victims of Crime and Criminal Threats"
May 10, 2023 Andrew HalpinJurisprudence
In his contribution to an academic event described as “Serious Fun: A conference with & around Schlegel!” Charles Barzun manages to meet all three expectations. Entitled The Tale of Two Harts; A Schlegelian Dialectic, Barzun’s article in the 2021 Buffalo Law Review delivers a number of serious reflections, combines them with some appropriate hilarity, and turns to the event’s honorand as an authoritative guide.
The serious stuff encompasses a comparative study of the influences of the two Harts (Henry and Herbert), an inquiry into the impact of prevailing intellectual culture on scholarship and how it is received, and an appraisal of disciplines (legal and other). It extends to a radical suggestion for legal education, observations on the CLS movement and legal historians, and constructing an academic profile. The fun is two-edged. Ultimately an invitation to have fun in one’s academic inquiries, it turns at times to poking fun at those who take themselves too seriously in their scholarly endeavours. That can easily be turned back as an injunction not to take oneself too seriously. Here too the honorand is taken to provide helpful guidance on striking the right balance.
The appeal of this article lies in the stimulating variety of topics covered and the way in which it weaves them together. The central idea to which much of the discussion returns is the “Essential Dilemma”. Barzun explains this as the problem of reconciling our “subjective” common-sense view of the world with an “objective” scientific view (P. 21). He considers that both Harts grapple with this dilemma. On one level, Henry Hart in The Legal Process is found to be pushing the objective scientific side in regarding “law as a ‘prudential’ or ‘judgmatical’ science” (P. 26), while Herbert Hart in The Concept of Law appears to be favouring the subjective side in advancing the “internal point of view” of the law (Pp. 15-16, 25). Continue reading "Hart Surgery"
May 8, 2023 Jedidiah KronckeInternational & Comparative Law
In 1972, Laura Nader published her generationally influential article, “Up the Anthropologist.” The motivation for Nader’s intervention was borne partly out of her experience with students who felt daunted by the prospect of studying powerful social elites—what has now become popularly known as “studying up.” As a pioneering legal anthropologist, for Nader this often involved the study of law, especially elite lawyers. Nader outlined many of the opportunities and demands that would face anthropologists and others who sought to use ethnographic methods to study those who could articulate and promote their own representations in public, and actively limit researcher access to their workplaces.
Fifty years after Nader’s intervention, Dimitri van den Meerssche’s The World Bank’s Lawyers: The Life of International Law as Institutional Practice tackles this task of “studying up” at perhaps one of the most singularly powerful international institutions—the World Bank. Van Den Meerssche takes up this particular challenge when all of the barriers Nader identified early on have only intensified. Not only is the Bank fully enmeshed in the defense of its own public image, but it is fully aware of the possibility that researchers could take any access as an opportunity to construct their own critical narratives
Van Den Meerssche has thus produced a fascinating analysis of how to study such an institution under these constraints, as well as a meditation on what critique of international institutions should look like. What he produces is not a traditional ethnography but, as Nader presaged, a creative empirical study that takes advantage of the Bank’s own complexity to dive deeply into the daily world in which the Bank’s lawyers operate. Continue reading "The World Bank’s Many Worlds of the Rule of Law(yering)"
May 26, 2022 André den ExterHealth Law
Every field of law has some comparative law studies, including health law. A search in the legal databases gives several hits using the keyword comparative health law; in other words, comparative law is ‘hot’. However, the comparison is often limited to a single topic (medical negligence, euthanasia, patients’ rights, etc.) and a limited number of jurisdictions. The added value of the Oxford Handbook of Comparative Health Law is the comprehensive nature of the study: a wide range of related topics within contemporary health law is addressed (regulating public health, health financing, health services and facilities, pharmaceuticals, the patient-provider relationship, new medical technologies, and end-of-life decision making). The editors opted for a so-called transatlantic approach, specifically comparing the United States and Europe. This choice is justified by the differences and similarities between the legal frameworks of health law in these regions. All in all, this is an ambitious project, partly because the legal rules can differ considerably between states and at the country level.
It is precisely the scope and quality of the legal comparison conducted that allows this Handbook to make a valuable contribution to the understanding and resolution of contemporary issues within health law. Mistakenly, health law issues are often approached exclusively as unique to the legal system in question, but the difference in manifestation does not make the issue any different in other jurisdictions. The question that needs to be asked first is why a particular legal rule is shaped differently in form and substance in different national jurisdictions. With respect to such explanatory research, as described by Dannemann: “Generally speaking, the (comparative) analysis should seek to explain differences and similarities as they arise from the description of the legal systems under consideration, so that whoever has predominantly found similarity, will predominantly have to explain similarity, whereas those who have predominantly found differences, will predominantly have to explain differences”. Continue reading "Health Law: A Transatlantic Dialogue"
Dec 17, 2020 Rosalind DixonInternational & Comparative Law
Constitutional democracy is under threat worldwide, including in Asia itself. Witness the banning of the political opposition in Cambodia, the ongoing role of the military in Thailand, or the actual and threatened expansion of executive authority in the Philippines. These trends also parallel broader patterns of democratic backsliding or erosion across the globe. Identifying ways in which courts can effectively help counter these trends is thus of enormous value in 2020, and beyond.
In her important new book, Constitutional Statecraft in Asian Courts, Yvonne Tew provides just such an account: she argues that courts in Asia – and specifically in common law, South-East Asian countries such as Malaysia and Singapore — can and should play a greater role in both helping build and protect resilient constitutional democratic systems. Continue reading "Building a more Perfect Democracy in Asia: A Realistic Theory of Courts as Democracy Protectors and Promoters?"
Oct 1, 2018 Shubha GhoshInternational & Comparative Law
“There ought to be a law about that” is a common response to circumstances we don’t like. But outlawing war? We might as well legislate against the flu. A new book called The Internationalists: How a Radical Plan to Outlaw War Remade the World authored by Professors Oona A. Hathaway and Scott J. Shapiro of Yale Law School shows how the endless cycle of war and peace prior to World War I has given way to a New World Order, post World War II. Today, they argue, war is no longer legitimate and might does not make right. But this New World Order comes at a cost as civil wars and internal disputes challenge established national borders (forged themselves by war). Has one form of aggression just replaced another?
Hathaway and Shapiro have produced a readable and provocative book that I like because of its extensive coverage over three self-contained but connected parts. The first part is about Hugo Grotius and the background that led to his groundbreaking book on international law and war. Or perhaps, his book is actually about war as international law, as conquest became the preferred means of resolving conflict among nations. A 17th Century naval battle in the Straits of Singapore between the Dutch and the Portuguese was the catalyst for a legal dispute that Grotius infamously resolved by laying down principles for just war. But these principles expanded beyond their boundaries to support the use of aggression to resolve a wide range of disputes, going beyond the limits of “just war.” Grotius, as Hathaway and Shapiro tell us, laid the foundations for a world order which recognized the nation’s right of conquest, a license to kill within skirmishes, and gunboat diplomacy. Within this order, nations had to remain impartial or take sides; there was no room for intervention through sanctions or mediation. Invariably, nation-states would be forced into conflicts, such as border disputes, debt defaults, or assassinations, with resulting regional or global escalation. World War I was the culmination of the international order that Grotius wrought. Continue reading "All’s Well That Ends Well, Sort of"
May 1, 2018 Jedidiah KronckeLegal History
Scholars from a variety of disciplines have begun to explore what they see as the lost virtues of political economy. In its broadest conception, this term is meant to capture the basic truism that any study of politics or economics should reflect their mutually constitutive character. A renewed interest in political economy and the law further reflects the same mutuality among law, politics, and economics. Central to such renewal is a claim that analytically segregating these fields leads to analysis that is both descriptively inaccurate and has powerful and troubling normative consequences.
Sabeel Rahman’s Democracy Against Domination is a leading example of a new generation of scholarship that demonstrates both the descriptive and normative promise of law and political economy. Rahman’s mission in the book is to reinfuse debates on financial regulation with overt concern for democratic participation and to recover an ethos that sees American economic and political citizenship as inextricably intertwined. Rahman’s history traces how this ethos was lost over the course of the twentieth century, and in doing so produces a sustained historical inquiry about how we arrive at what is considered “normal” or inevitable about legal regulation. Domination’s chapters follow the pattern of presenting a modern problematic in regulation and then demonstrating how contemporary responses are both democratically impoverished and historically contingent. The aim of the endeavor is to argue that fields of law that have been exorcised of any referent to democratic values, notably antitrust and administrative law, need to be reopened and remade. The alternative is to face pressing issues of inequality with an ultimately ineffective set of regulatory responses. Continue reading "Recovering and Revitalizing Economic Citizenship in American Law"
