Murkens on Comparative Constitutional Law in the Courts

Jo Murkens (LSE Law Department) has posted 'Comparative Constitutional Law in the Courts: Reflections on the Originalists' Objections' on SSRN as an LSE Legal Studies Working Paper (No. 15/2008). This is the abstract:

The controversy surrounding the judicial use of comparative constitutional law is not new. However, the debate has recently been reignited by a number of US Supreme Court justices who have spoken out on the use of non-US law in the Court. Scalia opposes, and Breyer favours, references to 'foreign law'. Their comments, made both within and outside of the Court, have led to a reaction by scholars. Arguably the debate is US-specific as it resembles the different views regarding constitutional interpretation, namely whether the Constitution's original, or rather its current, meaning is determinative. Yet the debate also raises broader issues of constitutional theory and politics: formal vs substantive legitimacy, globalisation of the courts, judicial sleight of hand, the cultural foundations of constitutional law, and the citation of non-primary sources of law in litigation. The present article explores these issues. It rejects radical approaches (either against or in favour of comparative constitutional law) and instead argues for a more modest process which both identifies the national specificity of law and grasps the mediating potential of law as a self-reflexive discourse.

Valcke on Convergence and Divergence in Contract Law

Catherine Valcke (U Toronto Law) has posted her European Review of Private Law article 'Convergence and Divergence between the English, French, and German Conceptions of Contract' on SSRN (University of Toronto Legal Studies Research Paper, No. 08/14). This is the abstract:

This piece aims to highlight the different internal and external perspectives on the English, French, and German law of contractual mistake. While the solutions devised by these three systems in response to mistake issues are functionally equivalent, it is possible to reconstruct the different means internally deployed by each system to reach these solutions into (different) coherent forms of argumentation. Depending on whether one takes an internal or an external perspective, therefore, one could conclude that the three systems are simultaneously converging and diverging.

This is an innovative contribution to the often exceedingly mono-dimensional convergence/divergence debate in European private law. Valcke again - see also her article 'Comparative Law as Comparative Jurisprudence' in 52 Am J Comp L 713 (2004) - demonstrates the importance of integrating multiple perspectives and objects of comparison when engaging in comparative research. Recommended.

The Judicial Systems of the EU Member States (ECJ Research and Documentation Service)

The Research and Documentation Service of the European Court of Justice has published a very useful overview of the judicial systems of the EU Member States, entitled 'Les Juridictions des États Membres de l’Union Européenne: Structure et Organisation', which is available free online, and as a book from the EU Bookshop. The book includes detailed country reports, graphic overviews of judicial systems and appeals procedures, and guides for further reading (all in French). A very handy source of information indeed.

Hat-tip: Felix Ronkes Agerbeek.