10 January 2006

Balancing and the Conflict of Laws

Back, a little later than expected, for a new year of blogging; many thanks for your continued visits! Anyone with an interest in the topics of judicial balancing and conflict of laws may want to look up this book that appeared late 2005: "Balancing of Interests. Liber Amicorum Peter Hay zum 70. Geburtstag", edited by Eric Rasmussen-Bonne, Richard Freer, Wolfgang Lüke and Wolfgang Weitnauer (Publishers: Verlag Recht und Wirtschaft). At least two contributions to the book are available online:

Harold J. Berman, 'Is Conflict of Laws becoming passé? An Historical Response'. Available as an Emory University School of Law Public Law & Legal Theory Research Paper on SSRN.

Professor Berman argues that "the Romanists of the twelfth and thirteenth centuries got their conflict-of-laws concepts and doctrines from the canonists." This matters because now, contrary to widespread understanding, "it was not primarily a positivist theory of law but a natural-law theory and a historical theory" that stood at the origins of the discipline, suggesting a much greater role for reason and justice in the solution of conflicts.

William J. Carney, 'Will Choice of Corporate Law Become Trivial?'
. Available as an Emory University School of Law Research Paper on
SSRN. This is the abstract:

American corporate law scholarship has witnessed the waxing and waning of a variety of grand theories about the globalization of corporate law in the past two decades. The first idea was that harmonization of European company law might lead to a productive form of uniformity. The second was that American law was out of step with that of other leading industrialized nations, and perhaps we should look to their models, generally involving controlling shareholders, for guidance. The third idea was that investors and corporations face common problems regardless of local law, and in a competitive environment one might expect a convergence of corporate laws through market forces that sought the most efficient solutions to these common problems. This kind of convergence has only occurred at a few margins, and seems unlikely to occur in such a way that choice of law rules in corporate law would become less relevant. Indeed, the fourth wave of scholarship in this field now seeks to explain why significant differences persist.

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