Mi casa es tu casa? The Limits of Inter-systemic Dispute Resolution

2020 ◽  
pp. 1-20
Author(s):  
Rodrigo Camarena ◽  
Bradly J. Condon
Keyword(s):  
Dispute Resolution ◽  
Judicial Review ◽  
Common Law ◽  
Legal Reasoning ◽  
The United States ◽  
Legal Traditions ◽  
English Speaking ◽  
The Common ◽  
Domestic Law

Abstract The ‘new NAFTA’ agreement between Canada, Mexico, and the United States maintained the system for binational panel judicial review of antidumping and countervailing duty determinations of domestic government agencies. In US–Mexico disputes, this hybrid system brings together Spanish and English-speaking lawyers from the civil and the common law to solve legal disputes applying domestic law. These panels raise issues regarding potential bicultural, bilingual, and bijural (mis)understandings in legal reasoning. Do differences in language, legal traditions, and legal cultures limit the effectiveness of inter-systemic dispute resolution? We analyze all of the decisions of NAFTA panels in US–Mexico disputes regarding Mexican antidumping and countervailing duty determinations and the profiles of the corresponding panelists. This case study tests whether one can actually comprehend the ‘other’. To what extent can a common law, English-speaking lawyer understand and apply Mexican law, expressed in Spanish and rooted in a distinct legal culture?

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

The Common Law Legal Tradition: First Things First

2021 ◽  
pp. 15-22
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
Primary Source ◽  
Case Law ◽  
The United States ◽  
Public Law ◽  
Legal Tradition ◽  
The Common ◽  
The Law

This chapter explains briefly the origins and development of the common law tradition in order to better understand the rise of judicial review in the seven common law countries discussed in this volume. The common law legal tradition is characterized historically, in public law, by limited, constitutional government and by forms of judicial review of the constitutionality of legislation. In private law, the common law tradition is characterized by judge-made case law, which is the primary source of the law, instead of a massive code being the primary source of the law. The common law tradition is also characterized by reliance on the institution of trial by jury. Judges, rather than scholars, are the key figures who are revered in the common law legal tradition, and this is one of the key things that distinguishes the common law legal tradition from the civil law legal tradition. The common law legal tradition emphasizes judicial power, which explains why it has led to judicial review in the countries studied in this volume. It is the prevailing legal tradition in the four countries with the oldest systems of judicial review of the constitutionality of legislation: the United States, Canada, Australia, and India. Thus, judicial review of the constitutionality of legislation in these four countries is very much shaped by common law attitudes about the roles of judges.

The Rights of the Individual in Court

1974 ◽  
Vol 9 (4) ◽  
pp. 477-496 ◽  
Author(s):  
Gideon Hausner
Keyword(s):  
Total Population ◽  
Common Law ◽  
Jewish State ◽  
Legal Traditions ◽  
Liberal Democratic ◽  
Mother Country ◽  
English Oak ◽  
English Speaking ◽  
The Common ◽  
The Individual

Close to one billion people, a third of the total population of the world, live under systems of government broadly defined as liberal-democratic, of which it can be said that authority rests on public opinion and is accountable to it. Out of the said number, only sixty million, i.e., 6%, live in states which have no formal written constitution. Great Britain is a notable example. New Zealand is another. Israel is a third in this exclusive company. In these countries it falls to the Courts, fortified as they are by the traditions of the Common law, to be the mainstay of the liberties of the individual. The English Common law, however, is “just like an English oak. You cannot transplant it to (another) continent and expect it to retain the tough character which it has in England. It will flourish indeed but it needs careful tending”. (per Lord Justice Denning).The application of western principles of the rule of law to the reborn Jewish State was more in the nature of a grafting than of a transplantation. It was a combination which offered an interesting legal experiment. While drawing upon ancient legal traditions and heritage, the Israel courts were vitalized through their access to the legal experience of English-speaking countries, especially so since the Common law in its mother country exemplified the adaptations of old principles to new needs long before it was exported abroad.

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 Commercial Contracts in Muslim Countries of the Middle East: A Comparison with the United States

2009 ◽  
Vol 37 (1) ◽  
pp. 1-28 ◽  
Author(s):  
Jacqueline McCormack
Keyword(s):  
United States ◽  
United Arab Emirates ◽  
World Wide ◽  
Islamic Law ◽  
Common Law ◽  
The United States ◽  
Legal Traditions ◽  
Muslim Countries ◽  
Trading Zones ◽  
The Common

Outside of the common law and civil law legal traditions, what is termed “Islamic law” forms one of the world's largest legal systems. There are more than one billion Muslims world-wide, and millions of those Muslims populate some of the world's richest trading zones. As of 2005, the Gulf Cooperation Council (G.C.C.), comprised of Saudi Arabia, Kuwait, Bahrain, Qatar, Oman, and the United Arab Emirates, was the United States' fifth largest trading partner.

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.

scholarly journals From Norms to Facts: The Realization of Rights in Common and Civil Private Law

2011 ◽  
Vol 56 (1) ◽  
pp. 77-114 ◽  
Author(s):  
Helge Dedek
Keyword(s):  
Legal System ◽  
Deep Structure ◽  
Common Law ◽  
Social Reality ◽  
Judicial Decision Making ◽  
Legal Traditions ◽  
The United Kingdom ◽  
The Common ◽  
Legal Concepts ◽  
The Ideal

Every legal system that ties judicial decision making to a body of preconceived norms has to face the tension between the normative formulation of the ideal and its approximation in social reality. In the parlance of the common law, it is, more concretely, the remedy that bridges the gap between the ideal and the real, or, rather, between norms and facts. In the common law world—particularly in the United Kingdom and the Commonwealth—a lively discourse has developed around the question of how rights relate to remedies. To the civilian legal scholar—used to thinking within a framework that strictly categorizes terms like substance and procedure, subjective right, action, and execution—the concept of remedy remains a mystery. The lack of “remedy” in the vocabulary of the civil law is more than just a matter of attaching different labels to functional equivalents, it is the expression of a different way of thinking about law. Only if a legal system is capable of satisfactorily transposing the abstract discourse of the law into social reality does the legal machinery fulfill its purpose: due to the pivotal importance of this translational process, the way it is cast in legal concepts thus allows for an insight into the deep structure of a legal culture, and, convergence notwithstanding, the remaining epistemological differences between the legal traditions of the West. A mixed jurisdiction must reflect upon these differences in order to understand its own condition and to define its future course.

Law and Lawyers in the United States: The Common Law under Stress

1967 ◽  
Vol 80 (4) ◽  
pp. 916
Author(s):  
Lord Denning ◽  
Erwin N. Griswold
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
The Common
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