Law & Development as Anti-Comparative Law

Abstract:
This article asserts that during the twentieth century, American law has predominately structured its relationship to foreign legal experience through a set of ideas and practices known as “law and development,” which is irredeemably antithetical to the practice of comparative law. Centrally, law and development is built on the assumption that American law can be exported abroad to catalyze foreign legal development. The dismal record of such efforts has remained paradoxically popular while the field remains locked in repeating cycles of failure and optimism.

This article demonstrates that the history of law and development’s failures is far older than has been traditionally recognized, and dates back to the turn of the twentieth century. In this era, foreign reform became a key part of the professional image of the modern American lawyer. At the same time, the origins of law and development were intimately tied to the decline of comparative law in American legal culture. This history reveals that the paradox of law and development’s contemporary popularity can only be understood by recognizing the cultural politics that these developments embedded in the American legal community. The troubling legacy of this widely entrenched view of America as solely an exporter of legal knowledge presents pressing liabilities for American law, both internationally and domestically, on the competitive terrain of the twenty-first century.

This article concludes that in order to address these liabilities, America should categorically abandon law and development and should fundamentally reorient its relationship to foreign legal experience through a self-interested practice of comparative law. As exemplified in the debate over judicial citation of foreign precedents, this shift will require basic changes in how American legislative and administrative bodies relate to foreign law, as well as the place of comparative law in American law schools. Such a reorientation will enable America to strategically perceive foreign legal developments and, most critically, productively adapt foreign legal experience as an energizing stimulant to our own legal innovation.

Kroncke, Jedidiah, Law & Development as Anti-Comparative Law (September 23, 2011). Vanderbilt Journal of Transnational Law, Vol. 45, 2012.

An Economic Analysis of Civil versus Common Law Property

Abstract:
Common law and civil law property appear to be quite different, with the former emphasizing pieces of ownership called estates and the latter focusing on holistic ownership. And yet the two systems are remarkably similar in their broad outlines, for functional reasons. This paper offers a transaction cost explanation for the practical similarity and the differing styles of delineating property and ownership in the two systems. As opposed to the “complete” property system that could obtain in the world of zero transaction costs, actual property systems employ structures characterized by shortcuts in order to achieve property’s substantive goals of protecting interests in use. Overlooking this structure leads to the bundle of rights picture of property, even though property is a structured bundle of relationships. The architecture of property consists in part of four basic relationships, and a number of characteristic features of property automatically arise out this architecture, including exclusion rights, in rem status, and running to successors. Where civil law and common law differ is in their style of delineation, which reflects the path dependence of initial investment in feudal fragmentation in the common law and Roman-inspired holistic dominion in civil law. This transaction cost explanation for the functional similarities but different delineation process in the two systems promises to put the comparative law of property on a sounder descriptive footing.

Chang, Yun-chien and Smith, Henry E., An Economic Analysis of Civil versus Common Law Property (February 17, 2012). Notre Dame Law Review, Forthcoming.

Legal Colonialism – Americanization of Legal Education in Israel

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).