Caruso on Private Law and State-Making in the Age of Globalization

Daniela Caruso (Boston University, of "Missing View of the Cathedral"-fame) has posted "Private Law and State-Making in the Age of Globalization" on SSRN (Boston Univ. School of Law Working Paper No. 06-09, New York University Journal of International Law and Politics, Vol. 39, No. 1, 2006).

This is the abstract:

The rise of post-national entities, such as the institutions of the European Union and of free-trade regimes, bears no obvious relation to the traditional pillars of western private law (mostly contracts, torts, and property doctrines). The claim of this article is that the global diffusion of private law discourse contributes significantly to the emergence of new centers of authority in the global arena. The article tests the impact of private law arguments in three contexts - the growing legitimacy of regional human rights adjudication, the consolidation of the institutions of the European Union, and the higher binding force of international investment treaties. Private law gains popularity in global legal discourse when its most centrifugal features are emphasized (individual autonomy, horizontal dispersion of authority, indifference to governmental institutions). Once popular, however, private law discourse also evokes centripetal arguments (aspiration to internal coherence, uniformity in adjudication) and therefore paves the way to new centers of public, vertical power. Most noticeably, private law discourse provides regional or global institutions with a patina of distributive neutrality, and therefore facilitates the endorsement of ideologically laden institutional developments.

Alexander & Schauer on Law and Morality

Professors Larry Alexander (San Diego) and Frederick Schauer (Harvard) have posted "Law’s Limited Domain Confronts Morality’s Universal Empire" (San Diego Legal Studies Paper No. 07-44; William and Mary Law Review, Forthcoming) on SSRN. Not a comparative law piece, but a paper concerned with the role of formalism in law; a crucial topic in jurisprudence generally and - I'd like to suggest - an under-used axis in (modern) comparative research.

Here's a quote: "[F]ormalism in just the sense of treating legal prohibitions as at least partially opaque to all-things-considered morality is a defining characteristic and morally desirable feature of law itself." (at p. 24)

And here's the abstract:

There is an ongoing debate in contemporary jurisprudence over whether law, properly conceived, is capable of incorporating morality. And these debates have their important practical analogues, especially in American constitutional law. For this is where lawyers and scholars argue about whether, for example, the guarantees of equal protection, freedom of speech, and the free exercise of religion, as well as the prohibitions on cruel and unusual punishments and unreasonable searches and seizures, require courts and other governmental decisionmakers to adhere to the correct moral principles regarding equality, freedom of speech, freedom of religion, punishment, and (locational) privacy. That these and other constitutional clauses appear to speak in moral language is relatively uncontroversial, but far more controversial is what it means for authoritative law to speak in moral language, and how, if at all, such language connects law with what it is simply and pre-legally morally right (and wrong) to do.

These debates about the status of morality in legal argument are important, but our goal here is not to engage them frontally. Rather, we wish to illuminate a particular aspect of these debates. And that aspect is the logic of the incorporation by law of morality, and the way in which, if at all, law can retain its lawness and retain its ability to perform law’s essential functions while still being open to the full universe of moral considerations. In a word, we do not believe that this is possible, and thus we believe, and shall argue here, that even when law incorporates morality it can only serve law’s primary and essential functions if it has a considerable degree of resistance to the pressure of at least some morally correct moral claims. In other words, we strive here to make the moral argument for law’s ignoring of at least some moral arguments in legal decision-making.

Incidentally, ComparativeLawBlog is one year old today (yey!). Haven't been posting much lately due to very busy, but am definitely still enthusiastic about the experiment, so things should get more interesting again in the near future.

Journal of Comparative Law

This is something I should definitely have notified earlier, but here goes: there's a new Journal of Comparative Law, published by Wildy, Simmonds & Hill and with an impressive list of editors and boardmembers. The Journal will be published twice yearly, and articles will be peer-reviewed. The first issue (2006/1) contains this mission statement by editor Nicholas Foster (SOAS, London), entitled: ‘The Journal of Comparative Law: A New Scholarly Resource’. Issues will contain contributions to the following sections: Research Commentaries; Reviews; Noted Publications; Sources (occasional); Bibliography (occasional); Other Voices (occasional); and Classics of Comparative Law (occasional).

The editors have chosen to "adopt a broad definition of ‘comparative legal studies’, a definition which includes at least the following categories: Theoretical Aspects of Comparative Legal Studies; Single-system Analysis; Directly Comparative Analysis; ‘Harmonisation’, ‘Legal Transplants’ and Mixed Jurisdictions; Problems Arising from Trans-border Transactions and Events; Conflict of Laws; Divergent Approaches to Public International Law; and Comparative Law and Legal Theory."

Editorial guidelines and an overview of the contents of the first issue can be found on the Journal's home page here.

Papers on Constitutional Dialogue (Bateup) and Publishing Dissents (Jacobson)

New comparative law and judicial decision making papers on SSRN:

Christine Bateup (NYU Law School), "The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue", NYU Public Law Working Paper no. 05-24 (Brooklyn Law Review 71/2006). Full-text here on SSRN.

Abstract: In recent years, the metaphor of "dialogue" has become increasingly ubiquitous within constitutional theory - both in the United States and globally - as a way of describing the nature of interactions between courts and non-judicial actors in the area of constitutional decision-making, particularly in relation to the interpretation of rights. This Article provides a critical account of theories of constitutional dialogue in order to determine which of these theories hold the greatest normative promise. Theories of dialogue face two hurdles to normative success. First, they must accomplish their goal of resolving the democratic objection to judicial review. Second, and legitimacy aside, they must be able to provide an attractive normative vision of the role of judicial review in democratic constitutionalism. This Article maintains that while theories of constitutional dialogue do make important contributions to our understanding of judicial review, most fail to provide satisfying normative visions of dialogue on these dual levels of analysis. This Article concludes that the greatest potential for achieving a normatively satisfying understanding of constitutional dialogue emerges when the contributions of equilibrium and partnership theories of dialogue are synthesized. Equilibrium theories focus on the judiciary's capacity to facilitate society-wide debate, while partnership theories draw attention to more distinct "judicial" and "legislative" functions that the different branches of government respectively perform. The dynamic fusion of these models not only makes the greatest contributions to our understanding of modern constitutionalism and the practice of judicial review, but also offers the greatest potential for designing improved dialogic constitutional systems in the future.


Arthur J. Jacobson (Cardozo Law School), "Publishing Dissent", Cardozo Legal Studies Research Paper No. 150 (Washington and Lee Law Review, 62/2005) . Full-text here on SSRN.

Abstract: Judges in common law jurisdictions sign opinions and publish dissents (as well as concurrences). In civil law jurisdictions they do not. Every civil law opinion is per curiam, by the court, while per curiam opinions in common law are the exception. The origins of the difference are historical and institutional. But the history and institutions of either system both reflect and inform profound jurisprudential differences. Written for a symposium at Washington & Lee Law School on unpublished and de-published opinions, the essay examines the practice of dissent in three legal cultures and the absence of it in civil law culture. It explores the origins of the American practice in Marshall's Supreme Court at the beginning of the nineteenth century.