Abstract:
The American influence on the legal education in Israel has been significantly increased during the last three decades. Many faculty members gained their post-graduate education in American law schools. This phenomenon emerged out of both economic and cultural considerations. The result is an importation of research and teaching practices as well as the importation of theories and values. This process has significant influence on the Israeli legal system. The legal scholarship turns to be more universal and less local. English turns to be the main language of the legal academic discourse. The focus of the academic legal research is gradually concentrating on American contents and American materials. These phenomena have negative influences on the interaction of academy and legal practitioners in Israel. Moreover, theories that emerged in an American environment are percolated from the academic world to policy makers and judges. These policies have been applied as a solution for local and unique Israeli problems. The unique characteristics of the Israeli situation are neglected. Three examples to the latter are brought from the field of judicial cases concerning land policy. The first is the influence of the Brown v. Board of Education precedent on Israel policy with regard to allocation of land resources to minorities in a Jewish state. The second is the influence of American theories concerning indigenous people and distributive justice on the privatization of agricultural land in Israel. The third is the influence of American theories of distributive justice and social responsibility on the attitude of the Israeli legal world to land expropriations. These three examples show that the influence of the American education may go beyond the legal sphere and have a significant influence on basic political interior problems of foreign nations. Thus, the Israeli case may be a prism of a modern way of colonialism – a legal colonialism. This kind of superpower influence on small friendly nations is not exercised by military or economic pressure, but by an export of academic education. It may be noticed in Obama's insight that "American values are America's great export to the world.
Sandberg, Haim, Legal Colonialism – Americanization of Legal Education in Israel (June 8, 2010). Global Jurist 10.2 (2012).
Purpose
Tuesday, May 22, 2012
Torts, Courts, and Legislatures Comparative Remarks on Civil Law Codifications of Tort Law
Abstract:
This contribution reflects on the relationship between courts and the legislature in tort law from a comparative European perspective. Though there is a substantial body of comparative literature on tort law as such, the relationship between the judiciary and the legislature in comparative tort law has received significantly attention. Here, the approach under civil law systems to tort law is and the interaction between the judiciary and the legislature under those systems is explored. If we look beyond the misconception among common lawyers that civil law courts act merely as ‘porte-parole de la loi’ there is much flexibility to be found. In tort cases, civil law courts may assume a role that complements the role assumed by the legislature. Where codes give leeway for case law to create, develop, and innovate in tort law, courts will fill the space. Where the legislature is active, courts may assume a more subservient role. Yet, there is no single concept of power balance in civil law tort systems. In some countries, courts may be more willing than in others to show policy initiative where the legislature fails to act. The overall conclusion must be that although there is a fundamental difference in the starting point between the common law and those legal systems that have a codified tort law system, the balance between the legislature and the courts may be similar in many respects.
Van Boom, Willem H., Torts, Courts, and Legislatures Comparative Remarks on Civil Law Codifications of Tort Law (February 6, 2012).
This contribution reflects on the relationship between courts and the legislature in tort law from a comparative European perspective. Though there is a substantial body of comparative literature on tort law as such, the relationship between the judiciary and the legislature in comparative tort law has received significantly attention. Here, the approach under civil law systems to tort law is and the interaction between the judiciary and the legislature under those systems is explored. If we look beyond the misconception among common lawyers that civil law courts act merely as ‘porte-parole de la loi’ there is much flexibility to be found. In tort cases, civil law courts may assume a role that complements the role assumed by the legislature. Where codes give leeway for case law to create, develop, and innovate in tort law, courts will fill the space. Where the legislature is active, courts may assume a more subservient role. Yet, there is no single concept of power balance in civil law tort systems. In some countries, courts may be more willing than in others to show policy initiative where the legislature fails to act. The overall conclusion must be that although there is a fundamental difference in the starting point between the common law and those legal systems that have a codified tort law system, the balance between the legislature and the courts may be similar in many respects.
Van Boom, Willem H., Torts, Courts, and Legislatures Comparative Remarks on Civil Law Codifications of Tort Law (February 6, 2012).
Saturday, May 19, 2012
Enforcing Bilateral Promises: A Comparative Law and Economics Perspective
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.
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.
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