Abstract:
Parties often exchange promises of future performance with one another. Legal systems frame and regulate contracts involving the exchange of bilateral promises of future performance differently from one another. Two conceptual and practical questions often arise in these bilateral situations. Should a breaching promisor be allowed to force the performance of his non-breaching promisee? Should a breaching party be able to collect damages in a contract if his counterpart was also in breach? This paper examines these interrelated questions from a comparative law and economics perspective. We consider contracts in which parties make reciprocal promises of performance and study the incentives created by applying a defense of non-performance in unilateral breach cases and the “plaintiff in default” preclusion rules in bilateral breach cases.
Parisi, Francesco, Cenini, Marta and Luppi, Barbara, Enforcing Bilateral Promises: A Comparative Law and Economics Perspective (January 9, 2012). Minnesota Legal Studies Research Paper No. 12-03.
Purpose
Saturday, May 19, 2012
Toward a Methodology for Successful Legal Transplants
Abstract:
Global efforts to promote rule of law and good governance have led to renewed interest in legal transplants. Many reforms projects have focused on the substance of legal transplants, prescribing particular laws, practices or institutions, concepts, norms and attitudes – usually those found in the advanced economies of Euro-America – for developing countries. The results of such projects have been disappointing. The lackluster results have called attention to the need to develop a workable methodology for legal reforms, focusing on the processes of reform. Such a methodology must be based on a better theoretical and empirical understanding of the conditions that determine the success or failure of legal transplants. Part I provides a general overview of the legal transplant literature, focusing on descriptions, prediction and evaluation. One of the shortcomings of current rule of law promotion programs is that they tend to prescribe a common set of 'best practices' for all countries. Relatively little work has been done on differentiating developing countries and developing categories or ideal types based on the types of challenges they face. Accordingly, Part I lays the groundwork for a methodology of legal reforms based on differential analysis by first distinguishing between three 'exceptional cases': failed states, post-conflict states, and transitional states. In particular, Part I contrasts the particular problems facing low-income countries (LICs) with those facing middle-income countries (MICs). Part II then develops a preliminary methodological framework for assessing legal reforms and legal transplants. Part III concludes.
Peerenboom, Randall, Toward a Methodology for Successful Legal Transplants (January 9, 2012).
Global efforts to promote rule of law and good governance have led to renewed interest in legal transplants. Many reforms projects have focused on the substance of legal transplants, prescribing particular laws, practices or institutions, concepts, norms and attitudes – usually those found in the advanced economies of Euro-America – for developing countries. The results of such projects have been disappointing. The lackluster results have called attention to the need to develop a workable methodology for legal reforms, focusing on the processes of reform. Such a methodology must be based on a better theoretical and empirical understanding of the conditions that determine the success or failure of legal transplants. Part I provides a general overview of the legal transplant literature, focusing on descriptions, prediction and evaluation. One of the shortcomings of current rule of law promotion programs is that they tend to prescribe a common set of 'best practices' for all countries. Relatively little work has been done on differentiating developing countries and developing categories or ideal types based on the types of challenges they face. Accordingly, Part I lays the groundwork for a methodology of legal reforms based on differential analysis by first distinguishing between three 'exceptional cases': failed states, post-conflict states, and transitional states. In particular, Part I contrasts the particular problems facing low-income countries (LICs) with those facing middle-income countries (MICs). Part II then develops a preliminary methodological framework for assessing legal reforms and legal transplants. Part III concludes.
Peerenboom, Randall, Toward a Methodology for Successful Legal Transplants (January 9, 2012).
Constitutional Transplants, Borrowing, and Migrations
Abstract:
This paper, which will be published in the Oxford Handbook on Comparative Constitutional Law (M. Rosenfeld & A. Sajo, eds., forthcoming 2012), explores the borrowing and migration of constitutional ideas and institutions across jurisdictions. Despite the fact that comparative constitutional law is a form of comparative law, comparative constitutionalism has thus far largely ignored the rich debates in comparative law on the topic of legal transplants. I argue that those debates can illuminate our understanding of how constitutional doctrines and ideas travel. After noting the missing legacy of comparative legal thought in the constitutional realm, the paper studies the anatomy of constitutional transplants (object, timing, motivations and patterns) and provides a framework for their normative justifications. The paper concludes with remarks on constitutional convergence.
Perju, Vlad, Constitutional Transplants, Borrowing, and Migrations (January 9, 2012). OXFORD HANDBOOK ON COMPARATIVE CONSTITUTIONAL LAW, M. Rosenfeld , A. Sajo, eds., Oxford University Press, 2012; Boston College Law School Legal Studies Research Paper No. 254.
This paper, which will be published in the Oxford Handbook on Comparative Constitutional Law (M. Rosenfeld & A. Sajo, eds., forthcoming 2012), explores the borrowing and migration of constitutional ideas and institutions across jurisdictions. Despite the fact that comparative constitutional law is a form of comparative law, comparative constitutionalism has thus far largely ignored the rich debates in comparative law on the topic of legal transplants. I argue that those debates can illuminate our understanding of how constitutional doctrines and ideas travel. After noting the missing legacy of comparative legal thought in the constitutional realm, the paper studies the anatomy of constitutional transplants (object, timing, motivations and patterns) and provides a framework for their normative justifications. The paper concludes with remarks on constitutional convergence.
Perju, Vlad, Constitutional Transplants, Borrowing, and Migrations (January 9, 2012). OXFORD HANDBOOK ON COMPARATIVE CONSTITUTIONAL LAW, M. Rosenfeld , A. Sajo, eds., Oxford University Press, 2012; Boston College Law School Legal Studies Research Paper No. 254.
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