NAFTA Dispute Settlement and Mexico: Interpreting Treaties and Reconciling Common and Civil Law Systems in a Free Trade Area

1996 ◽  
Vol 33 ◽  
pp. 75-122
Author(s):  
J.C. Thomas ◽  
Sergio López Ayllón
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Common Law ◽  
Civil Law ◽  
Free Trade Area ◽  
The United States ◽  
Trade Area ◽  
History Of ◽  
The Common ◽  
Panel Review

SummaryThe first NAFTA Chapter 19 binational panel review of a Mexican antidumping determination raises important questions about the interpretation of treaties. In confronting the different way in which Mexico, a civil law country, had implemented NAFTA, the panel had to deal with a process of implementation different from that in the common law jurisdictions of Canada and the United States. The authors argue that in interpreting NAFTA, the panel relied on the negotiating history of one party, the United States, to reach a conclusion that did not represent the intentions of the three parties, and led to the exercise of a jurisdiction by a Chapter 19 panel in respect of Mexico that ü different from that exercised by Chapter 19 panels reviewing determinations from the other two NAFTA parties.

Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability

2013 ◽  
pp. 1-19
Author(s):  
Mary Garvey Algero
Keyword(s):  
United States ◽  
New York ◽  
Common Law ◽  
New York State ◽  
Civil Law ◽  
The United States ◽  
Stare Decisis ◽  
The Common ◽  
Judicial Opinions ◽  
The Right

Despite the fundamental differences between the doctrines employed in common law and civil law (or mixed) jurisdictions when it comes to the respect paid to prior court decisions and their weight or value, United States courts that follow the common law doctrine of stare decisis have embraced some of the flexibility inherent in the civil law doctrine, and civil law and mixed jurisdictions throughout the world, including Louisiana, that use the doctrine of jurisprudence constante seem to have come to value the predictability and certainty that come with the common law doctrine. This Article suggests that Louisiana courts are striking the right balance between valuing the predictability and certainty of interpretation that comes with a healthy respect for precedent and maintaining the flexibility and adaptability of the law by not strictly considering precedent a source of law. This Article discusses the results of an ongoing examination of the sources of law and the value of precedent in Louisiana. The examination involves a study of Louisiana legislation, Louisiana courts’ writings about the sources of law and precedent, and a survey of Louisiana judges. Part of the examination included reviewing Louisiana judicial opinions on various issues to determine if there were differences in valuing precedent based on area of law or topic. It also included reviewing judicial opinions from the United States Supreme Court and New York state courts to compare these courts’ approaches to the use of precedent with those of the Louisiana courts. The article is based on a paper presented to the Third Congress of Mixed Jurisdiction Jurists, which was held in Jerusalem, Israel in June 2011, and the author’s prior writings on the subject.

Introduction

2021 ◽  
pp. 1-6
Author(s):  
Amanda L. Tyler
Keyword(s):  
United States ◽  
Great Britain ◽  
Common Law ◽  
The United States ◽  
Habeas Corpus ◽  
American Law ◽  
History Of ◽  
The Common ◽  
Anglo American

The Introduction provides an overview of the history of the writ of habeas corpus and an overview of the book, which tells the story of what is sometimes known as “the Great Writ” as it has unfolded in Anglo-American law. The primary jurisdictions explored are Great Britain and the United States, yet many aspects of this story will ring familiar to those in other countries with a robust habeas tradition. The book chronicles the longstanding role of the common law writ of habeas corpus as a vehicle for reviewing detentions for conformity with underlying law, as well as the profound influence of the English Habeas Corpus Act of 1679 on Anglo-American law. The Introduction highlights how the writ has at times failed to live up to its glorification by Blackstone and others, while noting that at other times it has proven invaluable to protection of liberty, including as a vehicle for freeing slaves and persons confined solely based on a King’s whim.

Fundamental Values of Criminal Procedure

2019 ◽  
pp. 24-42
Author(s):  
Richard Lippke
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Human Dignity ◽  
Common Law ◽  
Civil Law ◽  
Criminal Procedure ◽  
The United States ◽  
The World ◽  
The Common ◽  
Fundamental Values

This chapter examines the fundamental values that ought to inform criminal procedure. More specifically, it considers what we ideally should want from the rules and procedures that exist in legal jurisdictions throughout the world. Three fundamental values are discussed—human dignity, truth, and fairness—and the ways in which they can be upheld or subverted by criminal justice practices. Illustrations are drawn primarily from the United States, but reference is also made to criminal procedure in other countries, including those in the civil law tradition. The article concludes by analyzing two further candidates for inclusion on the list of fundamental values of criminal procedure: the “effectiveness” of criminal procedure and the value of “expertise” that highlights the distinction between the common law and civil law traditions.

The Rights of Shareholders

1953 ◽  
Vol 2 (4) ◽  
pp. 564-578
Author(s):  
F. de Sola Canizares
Keyword(s):  
United States ◽  
United States Of America ◽  
Western Europe ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
Private Capital ◽  
General Survey ◽  
English Speaking ◽  
The Common

We propose here to lay before English-speaking lawyers a general survey of the rights of shareholders in that form of société, which is described in continental law as société anonyme, compagnie anonyme or société par actions; and we shall endeavour to do it in a way which will be easily understood by “common” lawyers. We shall be considering in general continental rights, that is to say, those prevailing in the civil law countries not only of Western Europe but also of Latin America. We shall leave aside the Soviet countries, where the problems of shareholders' rights do not arise in the same way as under the so-called capitalist régimes; it may even be said that in fact there are no sociétés anonymes there with private capital and therefore these problems do not arise in practice. We shall also disregard the law of the United States of America, which lies within the common law framework and is more accessible to English lawyers.

scholarly journals The Invention of Common Law Play Right

2017 ◽  
Author(s):  
Jessica Litman
Keyword(s):  
United States ◽  
Common Law ◽  
Case Law ◽  
The United States ◽  
Property Right ◽  
Public Performance ◽  
Dramatic Works ◽  
History Of ◽  
The Common ◽  
Theatrical Practice

In this paper, written for Berkeley’s symposium on the 300th birthday of the Statute of Anne, I explore the history of the common law public performance right in dramatic works. Eaton Drone dubbed the dramatic public performance right “playright” in his 1879 treatise, arguing that just as “copyright” conferred a right to make and sell copies, “playright” conferred a right to perform or “play” a script. I examine case law and customary theatrical practice in England, and find no trace of a common law play right before 1833, when Parliament established a statutory public performance right for plays. Similarly, in the United States, the first claims of a common law right to control public performances appeared only after Congress enacted a statutory dramatic public performance right in 1856. Courts and lawyers developed a common law literary property right to control public performances in order to permit the proprietors of dramatic works to recover even though there were formal defects in their U.S. copyright registrations. Eaton Drone then used those cases as a basis for embroidering a full-blown common law literary property right purportedly based in natural law. Courts adopted Drone’s version of common law play right and followed it for the next thirty years. (The breadth of the common law claim, however, made little difference to actual playwrights, who were deemed to have assigned their common law rights to the producers of their plays.) This history suggests that the rights that we perceive as inherent or natural are fundamentally contingent on what rights already have names and a path to enforcement.

“A Refractory and Turbulent Spirit”: Origins of Mississippi Law

2019 ◽  
pp. 10-34
Author(s):  
Joseph A. Ranney
Keyword(s):  
United States ◽  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
Economic Opportunity ◽  
Law System ◽  
Legal Code ◽  
The Common ◽  
Civil Law System

Mississippi operated under a civil-law system for more than a century as a French and Spanish colony, a system very different from the common-law system that replaced it after the United States acquired Mississippi. Important elements of civil law were preserved in the new territory’s law and in its first legal code, created by governor Winthrop Sargent (1798-99). After statehood (1817) political power shifted away from Natchez planters and merchants to the small planters and farmers who settled the rest of the state. Mississippi’s legal system likewise evolved from one that favored the Natchez aristocracy to one based on popular democracy and the promotion of economic opportunity. The state’s second constitution (1832) vividly expressed these ideals.

scholarly journals A IMPLANTAÇÃO DO TRIBUNAL DO JÚRI NO BRASIL E SUAS CARACTERÍSTICAS NOS PRINCIPAIS PAÍSES DO MUNDO

2018 ◽  
Vol 7 (2) ◽  
pp. 50
Author(s):  
Daniela Ries Winck ◽  
Mariana Pellizzaro
Keyword(s):  
United States ◽  
Conflict Resolution ◽  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
The United States ◽  
Inductive Method ◽  
The World ◽  
History Of ◽  
History Of Law

<p class="resumo"><strong>Resumo</strong>: O objetivo do presente estudo, desenvolvido através de pesquisa bibliográfica realizada a partir do método indutivo, foi apresentar a origem do Tribunal do Júri no Brasil, bem como expor breves considerações sobre as principais características desse instituto na Inglaterra, Estados Unidos, Itália, França, Portugal, Espanha e no Brasil. Com origem incerta, o instituto do Tribunal do Júri tem sido o modo de resolução de conflitos desde a sua criação, evoluindo  de formas diversificadas nos países do mundo. No Brasil, seu surgimento se deu ainda na época do Brasil Império, quando o país era uma colônia de Portugal.</p><p class="resumo"><strong>Palavras-chave</strong>: Tribunal do Júri; Direito Comparado; História do Direito; Common Law; Civil Law.</p><h3>THE IMPLEMENTATION OF THE JURY COURT IN BRAZIL AND ITS CHARACTERISTICS IN THE MAIN COUNTRIES OF THE WORLD</h3><div><p class="abstractCxSpFirst"><strong>Abstract: </strong>With uncertain origin, the institute of the Court of the Jury has been the mode of conflict resolution since its inception. In Brazil, its emergence occurred even in the time of Brazil Empire, when the country was a colony of Portugal. The objective of this study, developed through a bibliographical research based on the inductive method, was aimed at presenting the origin of the Jury's Court in Brazil, as well as presenting concise notes on the main characteristics of this institute in the United States United States, Italy, France, Portugal, Spain and Brazil.</p><p class="abstractCxSpLast"><strong>Keywords</strong>: Jury Court; Comparative Law; The History of Law; Common Law; Civil Law.</p></div>

scholarly journals A JUSTIÇA RESTAURATIVA COMO MEIO PARA MANUTENÇÃO DA MENORIDADE PENAL

2018 ◽  
Vol 7 (2) ◽  
pp. 66
Author(s):  
Patrícia Pasqualini Philippi ◽  
Caroline Testoni Wehmuuth
Keyword(s):  
United States ◽  
Conflict Resolution ◽  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
The United States ◽  
Inductive Method ◽  
The World ◽  
History Of ◽  
History Of Law

<p class="resumo"><strong>Resumo</strong>: O objetivo do presente estudo, desenvolvido através de pesquisa bibliográfica realizada a partir do método indutivo, foi apresentar a origem do Tribunal do Júri no Brasil, bem como expor breves considerações sobre as principais características desse instituto na Inglaterra, Estados Unidos, Itália, França, Portugal, Espanha e no Brasil. Com origem incerta, o instituto do Tribunal do Júri tem sido o modo de resolução de conflitos desde a sua criação, evoluindo  de formas diversificadas nos países do mundo. No Brasil, seu surgimento se deu ainda na época do Brasil Império, quando o país era uma colônia de Portugal.</p><p class="resumo"><strong>Palavras-chave</strong>: Tribunal do Júri; Direito Comparado; História do Direito; Common Law; Civil Law.</p><h3>THE IMPLEMENTATION OF THE JURY COURT IN BRAZIL AND ITS CHARACTERISTICS IN THE MAIN COUNTRIES OF THE WORLD</h3><div><p class="abstractCxSpFirst"><strong>Abstract: </strong>With uncertain origin, the institute of the Court of the Jury has been the mode of conflict resolution since its inception. In Brazil, its emergence occurred even in the time of Brazil Empire, when the country was a colony of Portugal. The objective of this study, developed through a bibliographical research based on the inductive method, was aimed at presenting the origin of the Jury's Court in Brazil, as well as presenting concise notes on the main characteristics of this institute in the United States United States, Italy, France, Portugal, Spain and Brazil.</p><p class="abstractCxSpLast"><strong>Keywords</strong>: Jury Court; Comparative Law; The History of Law; Common Law; Civil Law.</p></div>

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

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