Article: Upending a Global Debate: An Empirical Analysis of the U.S. Supreme Court's Use of Transnational Law to Interpret Domestic Doctrine

Ryan C. Black 

Michigan State University - Department of Political Science

Ryan J. Owens 

University of Wisconsin - Madison - Department of Political Science

Daniel E. Walters 

University of Pennsylvania Law School; University of Wisconsin - Madison

Jennifer Williams 

University of Wisconsin - Madison

February 25, 2014

Georgetown Law Journal, Forthcoming

U of Penn Law School, Public Law Research Paper No. 14-9

Abstract:

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical work on the conditions under which Supreme Court Justices actually use transnational law. Is it in fact the case that only liberal Justices employ transnational law — or do conservatives as well? In addition, there is little work on which countries Justices cite when they do use transnational law. Do they cherry pick whichever country works best in the given case, or is there a lower bound of plausibility when selecting countries to examine and cite? 

The authors provide the most systematic empirical exploration of the Court’s use of transnational law to date. Their results challenge conventional wisdom and prove to upend the existing debates over transnational law. The data show that Justices are more likely to reference transnational law when they exercise judicial review and when they overturn precedent, which likely explains much of the controversy around the practice. Importantly, the data show, further, that all Justices cite transnational law. Liberals cite transnational law when they render liberal decisions, and conservatives cite transnational law when they render conservative decisions. Liberals and conservatives alike employ such law because they are both ideologically conscious, strategic judicial actors who seek to support their decisions with as much persuasive material as possible. Finally, the results suggest that Justices cite countries with regard to their political and legal characteristics. They cite what the public would consider to be among the most legitimate countries across the globe. In other words, on the whole, Justices seem to borrow from countries most like the U.S. Whether these results are good or bad is unclear; what is clear, however, is that the normative debate over using transnational law must take a turn and address the authors’ findings.

Number of Pages in PDF File: 44

Disponível em: <http://ssrn.com/abstract=2401116>. Acesso em 22 abr. 2014.

Blog post: New Czech Act on Private International Law

by GILLES CUNIBERTI on APRIL 17, 2014

By Petr Briza, co-founding partner of Briza & Trubac, a Czech law firm focusing on cross-border litigation and arbitration, among others.

Regular readers of this blog might recall this post that referred to my article at Transnational Notes about the new Czech Act on Private International Law. The article provided a short general description of the new law that entered into effect on January 1, 2014. In this post I would like to introduce in more detail some provisions of the act, especially those that are not preceded by the EU legislation and thus will govern cases heard by Czech courts. Also, below you will find the link to the English translation of the full text of this new act on private international law.

Introductory remarks

For general comments on the new law I refer to my post at Transnational Notes. Here I will only shortly sum up couple of the main facts.

The act (published under No. 91/2012 Coll.) is part of the private law recodification whose main pillars are the new Civil Code (No. 89/2012 Coll.) and the new Business Corporations Act (No. 90/2012 Coll.). The act has 125 sections divided into 9 parts: (1) General Provisions (§ 1 – 5), (2) General Provisions of Procedural International Law (§ 6 – 19), (3) General Provisions of Private International Law (§ 20 – 28), (4) Provisions Concerning Individual Types of Private-Law Relations (§ 29 – 101), (5) Judicial Cooperation in Relations with Foreign States (§ 102 – 110), (6) Insolvency Proceedings (§ 111 – 116), (7) Arbitration and Recognition and Enforcement of Foreign Arbitral Awards (§ 117 – 122), (8) Transitional and Final Provisions (§ 123 – 124) and (9) Entry into Force (§ 125).

Now I will turn to the provisions that might be of interest for foreign readers.

General issues (§ 1-5 and 20-25)

The law regulates general issues of private international law, such as public policy (ordre public) exception, overriding mandatory rules, renvoi, qualification (characterisation), preliminary questions or application of foreign law. Unlike the previous “old” act (No. 97/1963 Coll.), the law does not define “ordre public”; instead it only introduces public policy (public ordre) exception as such (§ 4). It is expected that Czech courts will interpret the notion of ordre public in line with § 36 of the old act that defined ordre public as “such principles of the social and state system of the Czech Republic and its law that are necessary to insist on unconditionally.” The old law did not contain provisions on overriding mandatory norms; the new act regulates them in § 3 (lex fori overriding mandatory norms) and in § 25 (foreign overriding mandatory norms). While § 3 in fact merely acknowledges the existence of lex fori provisions that are always applicable, § 25 dealing with third state overriding mandatory norms resembles to some extent controversial Article 7 para 1 of the Rome Convention. The new act also regulates circumvention (abuse) of law (§ 5) that may relate both to the conflict rules and the rules on jurisdiction. Characterisation should be usually made under Czech law (§ 20). Foreign law is to be ascertained and applied ex officio (§ 23).

Jurisdiction, recognition and enforcement of foreign judgments

As already suggested, the importance of the act lies in the areas outside the scope of the EU law and/or international conventions/agreements. In cases where neither the Brussels I regulation nor the Lugano Convention (or another international agreement) is applicable, jurisdiction in general civil and commercial matters will be governed by § 6 of the act. Under this provision Czech courts have international jurisdiction if they have local jurisdiction (venue) under the Czech Civil Procedure Code (see §§ 84-89a of the Civil Procedure Code – No. 99/1963 Coll.) – one of possible jurisdictional grounds under Czech law is, e.g., an asset location in the territory of the Czech Republic.

The recognition and enforcement of third state (non-EU, non-Lugano) judgments in general commercial and civil matters is governed by §§ 14-16. Apart from traditional grounds for the refusal of recognition (ordre public, res judicata, lis pendens, fair trial) there is mandatory requirement of (material) reciprocity for cases where the decision is against Czech citizen/entity. Also, for a third country judgment to be recognized in the Czech Republic the foreign court has to have jurisdiction under a base of jurisdiction under which Czech courts may assert jurisdiction, unless the defendant voluntarily submitted to the foreign court’s jurisdiction (see § 15 (1) a)).

Conflict rules and rules on jurisdiction in specific matters

In this part I will again mention especially those conflict rules and provisions on jurisdiction that fall outside the scope of the EU legislation.

The primary connecting factor for legal capacity of natural persons is place of habitual residence (§ 29 para 1). However, in case of a name the primary connecting factor is the citizenship with habitual place of residence being a subsidiary connecting factor (see § 29 para 3). Capacity and internal matters of legal entities are governed by the law of the place of incorporation (§ 30).

As the Czech Republic is not a party to 1978 Hague Convention on Agency, the act will be applicable to relations between the principal and third person (these matters fall outside the EU law, which is applicable to principal-agent and agent-third person relations). Apart from a general rule on agency with multiple connecting factors (§ 44), there is a special rule on „proxy“ (“die Prokura” in German) and similar specific types of agency (§ 45).

In the area of family law (§ 47 – 67) one might want to take a look at the conflict rule on divorces (§ 50), as the Czech Republic is not bound by the Rome III regulation. Property regimes of spouses shall be governed by the law of the state in which both spouses are habitually resident; otherwise by the law of the state of which both spouses are citizens; otherwise by the Czech law (§ 49 para 3). The conflict rules, rules on jurisdiction and recognition of foreign judgments in matters of establishment and contesting of parentage are contained in § 53-55. International adoption is governed by § 60-63, registered partnerships and similar unions by § 67.

In the area of rights in rem § 70 para 2 is especially worth noting; it brings about an important change compared to the previous law by assigning the transfer (creation and extinguishment) of ownership under the law governing the contract on the basis of which the ownership is being transferred. § 73 regulates conflict rules for trusts, including the recognition of foreign trusts in the territory of the Czech Republic; the applicable law is the law of the closest connection with the trust, unless the settlor selects the applicable law. Succession is governed by § 74-79, although the importance of these provisions will be largely diminished by the EU regulation on succession, (fully) coming into force in August 2015.

The field of obligations (§ 84 – 101) is largely covered, except for promissory notes and bills of exchange (§ 93 – 100), by the EU legislation. One of few provisions of the act from this area that should be fully applicable is § 101 on non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation. These shall be governed by the law of the state in which the violation (the act giving rise to damage) occurred, unless the injured person chooses one of (up to) three other laws the provision offers for choice.

Insolvency, arbitration and assistance from the Ministry of Justice

The act also deals with those aspects of international insolvency not covered by the EU Insolvency Regulation (§ 111). As regards applicable law, the act in principle extends the regime of the regulation also to the cases falling outside the regulation’s scope (§ 111 para 3). In cases not covered by the regulation, Czech courts may conduct insolvency proceedings if the debtor has an establishment in the Czech Republic provided it is requested by the creditor with habitual residence or seat in the Czech Republic or the creditor?s claim arose in connection with the establishment?s activities. They can also extend jurisdiction based on the regulation to the debtor’s assets in a foreign state other than a Member State of the European Union provided the foreign state attributes effects to the proceedings in its territory. Foreign judgments in the insolvency matters shall be recognized under the condition of reciprocity provided in a foreign state in which it was handed down the debtor has a centre of main interests and provided the debtor?s assets in the Czech Republic are not a subject of pending insolvency proceedings.

The arbitration matters are largely covered by international agreements to which the Czech Republic is a party, namely the New York Convention and the European Convention on International Commercial Arbitration, thus the impact of the act is limited. Still, apart from the recognition and enforcement of foreign arbitral awards (§120 – 122), the act also regulates the conditions under which a foreigner may be designated as arbitrator (§ 118). An admissibility of an arbitration agreement shall be assessed under the Czech law and its material validity shall be governed by the law of the state in which an arbitral award is to be issued.

Finally, there is one specific feature of the act worth mentioning: given the complexity of international matters the act provides an opportunity for courts to consult the Ministry of Justice in cases covered by the act (§ 110). It goes without saying that such a consultation is optional and the Ministry’s opinion is by no means binding upon the court.

Concluding remarks

I will not repeat my conclusion about the act from my post in Transactional Notes, instead I give you an opportunity to make your own conclusions about the act and its potential added value (not only practical but also in comparative perspective): in order to make the new act available to readers from around the world, my law firm has provided for the English translation of the act. You can download it free of charge via this link.

Those who would like to explore the act, its context and related case law may be interestedin the commentary I have co-authored together with my colleagues from the Ministry of Justice, Czech Supreme Court and a notary. Unfortunately, it is only in Czech; the same goesfor this commentary written by other team of authors.

Any comments or questions regarding the act or its translation are welcome either under the post or at petr.briza@brizatrubac.cz .

Disponível em: <http://conflictoflaws.net/2014/new-czech-act-on-private-international-law-2/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em 22 abr. 2014.

Blog post: Polish Decisions on Submission to Jurisdiction

by GILLES CUNIBERTI on APRIL 22, 2014

by Michal Kocur and Jan Kieszczynski of Wozniak Kocur, a Polish litigationboutique law firm.

The Appellate Court in Lublin, Poland passed two separate decisions that stand by the principle that a challenge to international jurisdiction must be clear, substantiated and made right away in the defendant’s first appearance before the court.

In decisions taken on 26 March 2013 (file no. I ACz 151/13) and on 8 October 2013 (file no. I ACz746/13), the court found that raising a defense of lack of jurisdiction based on an arbitration clause cannot be treated as contesting the court’s international jurisdiction within the meaning of Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I).

The decision is particularly noteworthy as it deals with a controversial issue, as yet undecided by the Court of Justice of the European Union (ECJ).

Disputed jurisdiction

Both of the cases concerned the same dispute that emerged between two parties, a Polish and a French company, concerning the performance of a contract for the international sale of goods (Contract). The Polish company twice sued the French company for payment in the Polish courts. Both cases followed a similar pattern of procedural history, which will be outlined below.

In its statement of defense, the French company filed a motion to dismiss the case, taking the position that the dispute fell within the scope of the arbitration clause contained in the Contract. Apart from raising that jurisdictional defense, the defendant also went into the details of the merits of the case, rejecting the Polish company’s claim for payment. The Polish court rejected the French company’s jurisdictional defense. The court found that the arbitration agreement contained an exception that allowed the claimant to file a claim in a national court.

The French company appealed that decision. In its appeal, for the first time in the proceedings, the defendant raised a defense specifically invoking the lack of jurisdiction of Polish courts, and filed a motion to dismiss the case on those grounds. The defendant argued that the place of delivery of goods had changed, in light of which French courts had jurisdiction to hear the case, not Polish courts.

In response to the above, the claimant argued that the defendant’s challenge to the jurisdiction of Polish courts had not been presented in the statement of defense, and was therefore overdue.According to the claimant, as the Polish courts’ international jurisdiction was not contested in due time, the dispute was submitted to Polish courts in accordance with Article 24 Brussels I. Submission under Article 24 Brussels I exists when a defendant enters an appearance before the court, unless the appearance was entered in order to contest international jurisdiction:

Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.

The defendant disagreed. It argued that the statement of defense contained a jurisdictional defense based on the arbitration agreement, and that this defense alone was sufficient to properly contest international jurisdiction in the meaning of Article 24 Brussels I.

Inequality of objections

The issue whether raising an objection against jurisdiction based solely on an arbitration agreement is tantamount to contesting the jurisdiction of a Member State’s court has not yet been decided by the ECJ. The issue is controversial. In Poland, some scholars refer to a position presented in German language publications that a defense of the lack of jurisdiction based on an arbitration agreement by the same token contests jurisdiction in the meaning of Article 24 Brussels I.

In both of the cases at hand, the Appellate Court in Lublin rejected the defendant’s view and found that it had international jurisdiction as the cases fell under the rule of submission to jurisdiction.

The court held that a jurisdictional defense based on an arbitration clause did not contest the Polish courts’ international jurisdiction in the meaning of Article 24 Brussels I. According to the court, the defendant’s properly contested international jurisdiction too late and by that time the cases must have been treated as having been submitted. In the written reasons of the decisions, the court stated that a challenge against jurisdiction based on an arbitration agreement and a challenge against international jurisdiction are two separate challenges. It is not possible to assume that raising a defense of lack of jurisdiction due to an arbitration agreement is effective with regard to international jurisdiction.

The Appellate Court’s decision was correct. An objection to jurisdiction based on an arbitration agreement and an objection to international jurisdiction are based on different legal and factual grounds. This is exemplified by the case at hand. The lack of jurisdiction due to the arbitration agreement was claimed under the provisions of the Polish Code of Civil Procedure, and the dispute centered around the interpretation of the arbitration clause. The defense of lack of international jurisdiction was made under the provisions of Brussels I and on the basis of a disputed place of delivery of the goods. If different facts and different legal provisions have to be presented to substantiate either of the two defenses, one cannot treat them as synonymous in their effect.

Importance of submission

The analyzed decision of the Appellate Court in Lublin is also in line with the rules of examining jurisdiction enshrined in Brussels I.

Brussels I provides for an examination of the jurisdiction by the court’s own motion only in exceptional situations. That is the case, for example, in Article 22 point 1, which provides for the exclusive jurisdiction of the court in which a property is situated in cases concerning rights in rem in immovable property. Apart from such exceptions, the court only examines its jurisdiction if the jurisdiction is challenged by the defendant. Such challenges must be properly substantiated and raised in the first appearance before the court, i.e. usually, in the statement of defense.

This principle is interconnected with another rule, namely, the rule of submission of jurisdiction if no challenge is made by the defendant at the beginning of proceedings.

Both of the rules make perfect sense, both from the perspective of case management and legal certainty. If the courts were to examine jurisdiction by their own motion at every stage of the case, jurisdiction could be questioned very late in the proceedings, even before the court of last instance. That would lead to the obstruction of justice and deprive the parties of the right to have their case decided in due time.

Finding identity between a jurisdictional defense based on an arbitration agreement and a defense of lack of international jurisdiction would be contrary to the above rules. It would demand from the court to examine a challenge based on an arbitration agreement way beyond the legal reasoning and facts presented in that challenge. In such a case, if the court decided that the challenge based on an arbitration agreement should be dismissed, then the court would have to examine whether it has international jurisdiction, essentially, by its own motion. It would be the court that would be obliged to establish whether there were any other circumstances, apart from the arbitration agreement, that could potentially affect its jurisdiction to hear the case. This would not be a reasonable solution. Instead, the Brussels I rules discipline the parties to promptly decide whether they question the international jurisdiction of the court where they have been summoned. Those rules also prohibit them from second-guessing their jurisdictional defenses.

Disponível em: <http://conflictoflaws.net/2014/polish-decision-on-submission-to-jurisdiction/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em 22 abr. 2014.

Article: The French Twitter Case: A Difficult Equilibrium between Freedom of Expression and its Limits

François Delerue 

European University Institute

November 01, 2013

Digital Evidence and Electronic Signature Law Review, vol. 10, pp. 193-197 

Abstract:

The French Twitter case (Tribunal de Grande Instance de Paris, Ordonnance de référé, 24 janv. 2013, n° 13/50262, n° 13/50276, UEJF et a. c/ Twitter Inc. et Sté Twitter France and Cour d’Appel de Paris, 12 June 2013, Twitter Inc. et Twitter France c/ UEJF et a.) shows the difficulties experienced by courts, national authorities and companies, in relation to an international activity, and to find an equilibrium between freedom of expression and its limits, notably in the respect of public order. Moreover, it also shows that in a significant number of cases on the Internet, the application of the French law depends on the goodwill of the companies or the authorities of a foreign state.

Disponível em: <http://ssrn.com/abstract=2414609>. Acesso em 10 abr. 2014.

Article: Isaiah Berlin's Neglect of Enlightenment Constitutionalism

Jeremy Waldron 

New York University School of Law; University of Oxford

March 17, 2014

Abstract:

One of the most important achievements of the Enlightenment is what I shall call Enlightenment constitutionalism. It transformed our political thinking out of all recognition; it left, as its legacy, not just the repudiation of monarchy and nobility in France in the 1790s but the unprecedented achievement of the framing, ratification, and establishment of the Constitution of the United States. It comprised the work of Diderot, Kant, Locke, Madison, Montesquieu, Rousseau, Sieyes, and Voltaire. It established the idea of a constitution as an intricate mechanism designed to house the untidiness and pluralism of human politics. 

Yet Isaiah Berlin, supposedly one of our greatest interpreters of the Enlightenment, said almost nothing about it. The paper develops this claim and it speculates as to why this might be so. Certainly one result of Berlin's sidelining of Enlightenment constitutionalism is to lend spurious credibility to his well-known claim that Enlightenment social design was perfectionist, monastic, and potentially totalitarian. By ignoring Enlightenment constitutionalism, Berlin implicitly directed us away from precisely the body of work that might have refuted this view of Enlightenment social design.

Number of Pages in PDF File: 30

Disponível em: <http://ssrn.com/abstract=2410388>. Acesso em 3 abr. 2014.

Article: Top Five Things to Look for in a Legal Job: People, Tasks, Case/Project Features, Demands & Rewards

Jennifer S. Fan 

University of Washington - School of Law

Deborah A. Maranville 

University of Washington School of Law

March 4, 2014

Abstract:

Law students and new lawyers often struggle to find their place in the legal profession. Too often, they assume that their job search should be driven by subject matter. "I enjoyed my contracts class, so perhaps I'd enjoy working on contracts." This article advises law students to reorient their focus away from substantive law toward this top five things to look for in a legal job: people, tasks, case or project features, demands and rewards. Within each category, advises prospective lawyers on how different legal jobs may vary.

Number of Pages in PDF File: 8

Disponível em: <http://ssrn.com/abstract=2404627>. Acesso em 3 abr. 2014.

Article: No Shoehorn Required: How a Required, Three-Year, Persuasion-Based Legal Writing Program Easily Fits within the Broader Law School Curriculum

Adam Lamparello 

Indiana Tech Law School

Charles E. MacLean 

Indiana Tech Law School

March 2014

Abstract:

In prior articles, we advocated for a required fifteen-credit, three-year, persuasion-based, linear legal writing curriculum. Our model begins with persuasive advocacy from the first day of law school, and takes a sequential approach that mirrors the practice of law — from the initial client meeting to the appellate brief. It includes a separate track for those interested in transactional work, incorporates alternative dispute resolution and settlement simulations, and involves students in researching and drafting amicus briefs before federal appellate courts. Students are also offered several electives each semester to complement their required course load, and receive intense training in narrative storytelling, re-writing, and editing. In this article, we incorporate our proposal into the broader curricular context, and argue for more separation, not more integration, among the analytical, practical, and experiential pillars of legal education. All three are indispensable — and independent — pillars of real-world legal education: (1) the analytical focuses on critical thinking; (2) legal writing combines — and refines — thinking through practical skills training; and (3) experiential learning involves students in the practice of law. To help law students master all three, the curriculum should be designed in a largely sequential (although sometimes concurrent) order, to embrace, not blur, their substantive differences, and to approach inter-foundational collaboration with caution. Broadly speaking, analytical training should dominate the first year in legal writing, but should include an experiential component. The second year should combine analytical and practical skills training, and the third year should focus extensively on clinical work. Of course, a linear approach is not necessarily the best or most effective way to incorporate more writing classes into the curriculum. But three years of required legal writing, however structured, will likely benefit law students and the legal profession. As a recent article in the Wall Street Journal reported, college graduates “lack writing skills,” in part because “schools are not placing sufficient emphasis on writing and grammar.” Coupled with the substantial criticism from lawyers and judges about recent graduates’ weak writing skills, this places a high burden on law schools to focus more extensively on writing, composition, and legal drafting. That takes time — certainly more than a year.

Number of Pages in PDF File: 33

Disponível em: <http://ssrn.com/abstract=2403968>. Acesso em 3 abr. 2014.

Article: Direct Participation: Law School Clinics and International Humanitarian Law

Laurie R. Blank 

Emory University School of Law

David Kaye 

University of California, Irvine School of Law

March 1, 2014

International Review of the Red Cross, Vol. 95, No. 892 (2014) 

Abstract:

This article describes and analyzes two law school clinics focused on international humanitarian law: the International Humanitarian Law Clinic at Emory Law School and the International Justice Clinic at University of California, Irvine School of Law. Law school clinics focused on international humanitarian law enable students to participate directly in the development and application of IHL in concrete ‘real world’ settings – from training to research and fact-finding, litigation to high-level advocacy, and many spaces in between. These opportunities do far more than contribute only to these students’ development as effective, reflective lawyers, certainly a key goal of any clinical environment. Clinical IHL work also matches clinical pedagogy with cutting-edge issues in armed conflict to deepen students’ law school experiences and enables them to engage in the IHL goals of promotion, implementation and enforcement.

Number of Pages in PDF File: 36

Disponível em: <http://ssrn.com/abstract=2403303>. Acesso em 3 abr. 2014.

Article: Boilerplate Shock

Gregory H. Shill 

University of Denver Sturm College of Law; Harvard Law School

March 3, 2014

89 Tulane Law Review ___ (2015, Forthcoming)

U Denver Legal Studies Research Paper No. 14-16

Abstract:

No nation was spared in the recent global downturn, but several Eurozone countries arguably were hit the hardest. Doubts about the solvency of Greece, Spain, and some of their neighbors are making it more likely that the euro will break up. Observers fear a single departure and sovereign debt default might set off a “bank run” on the common European currency, with devastating consequences.

What mechanisms are available to address — or ideally, to prevent — such a disaster?

One unlikely candidate is boilerplate language in the contracts that govern sovereign bonds. These are provisions that have not been given a great deal of thought, yet they have the potential to be a powerful tool in confronting the threat of a global economic conflagration — or in fanning the flames.

Scholars currently believe that a country departing the Eurozone could convert its debt obligations to a new currency, thereby rendering its debt burden manageable and staving off default. However, this Article argues that these boilerplate terms — specifically, clauses specifying the law that governs the bond and the currency in which it will be paid — would likely prevent such a result. Instead, the courts most likely to interpret these terms would probably declare a departing country’s effort to repay a sovereign bond in its new currency a default.

A default would inflict damage far beyond the immediate parties. Not only would it surprise the markets, it would be taken to predict the future of other struggling European countries’ debt obligations, because they are largely governed by the same boilerplate terms. The possibility of such a result therefore increases the risk that a single nation’s departure from the euro might bring down the currency and trigger a global meltdown.

To mitigate this risk, this Article proposes a new rule of contract interpretation that would allow a sovereign bond to be paid in the borrower’s new currency under certain circumstances. It also introduces the phrase “boilerplate shock” to describe the potential for standardized contract terms to transform an isolated default on a single contract into a threat to the broader economy. Beyond the ongoing crisis in the Eurozone, the Article urges that lawyers address the potential for boilerplate shock in securities markets to damage the global economy.

Number of Pages in PDF File: 77

Disponível em: <http://ssrn.com/abstract=2403695>. Acesso em 3 abr. 2014.

Journal - Public International Law: Sources eJournal, v. 1, n. 10, May 29, 2014

PUBLIC INTERNATIONAL LAW: SOURCES eJOURNAL
Vol. 1, No. 10: May 29, 2014

ALAN O'NEIL SYKES, EDITOR
Robert Kindler Professor of Law, New York University School of Law
alan.sykes@nyu.edu

Table of Contents

Law, Legal Systems, and Legal Families
Surendra Bhandari, Ritsumeikan University - College of International Relations

The Swiss Vote Against Mass Immigration and International Law: A Preliminary Assessment
Vincent Chetail, Graduate Institute of International and Development Studies (HEI)

Harmonisation of IP Treaties - An Analytical Approach
Somnath De, Symbiosis Law School, Pune
Nandini Jaiswal, Symbiosis International University - Symbiosis Law School, Pune

Rules of Engagement and Abusive Citizens
Amitai Etzioni, George Washington University

Secondary Liability for Online Trademark Infringement: The International Landscape
Graeme B. Dinwoodie, University of Oxford - Faculty of Law

Weak Right, Strong Court - The Freedom to Conduct Business and the EU Charter of Fundamental Rights
Xavier Groussot, Lund University - Faculty of Law
Gunnar Thor Petursson, Reykjavik University
Justin Pierce, Lund University - Faculty of Law

Alternative Views on the European Union: Which Institutional Architecture?
Sergio Fabbrini, Luiss School of Government

India and Bilateral Investment Treaties -- A Changing Landscape
Prabhash Ranjan, South Asian University

Transposition of EU Directives into the Romanian Legal Order. Principles of the European Union Law and Romanian Experiences
Marian Enache, Independent

Una Aproximación Internacionalprivatista Al Nuevo CPC De Bolivia, De 2013 (A Private International Law Approach to the New Code of Civil Procedure of Bolivia of 2013)
Carlos Esplugues, University of Valencia - Faculty of Law

Book chapter: Structure and Style in Comparative Property Law

Yun-chien Chang 

Academia Sinica - Institutum Iurisprudentiae (IIAS) 

Henry E. Smith 

Harvard Law School

December 31, 2013

in Comparative Law and Economics, edited by Giovanni Battista Ramello & Theodore Eisenberg (2014), published by Edward Elgar. 

Harvard Public Law Working Paper No. 14-03

Abstract:

In this book chapter, we argue that the distinction between "structure" and "style" is important in understanding the similarities and dissimilarities in common and civil law property. Structure is the functional form the law employs to protect people’s use interests, whereas style is a manner of delineating entitlements that is characteristic of a particular legal culture. The same structure of property can be implemented in a number of styles. For transaction costs reasons, property systems under the two traditions (common and civil laws) are similar and have to be similar. Their styles today, as is well known, are quite different, due to their different histories and path dependence.

To underpin our point that it is critical to look beyond property styles to understand the economic nature of property, we closely examine mortgage (called hypothec in civil law countries). The styles of mortgage/hypothec cannot be more different. Several countries consider mortgage a property right; several others delineate it as a contract; while some others view it as neither property nor contract. We demonstrate that mortgage/hypothec, like other, uncontroversial property interests, contains the three essential elements of property. Thus, in terms of structure, mortgage/hypothec is a property right in all jurisdictions, despite the wide variety of styles in the civil and common law systems.

Number of Pages in PDF File: 38

Disponível em: <http://ssrn.com/abstract=2373377>. Acesso em 28 mar. 2014.

Article: Supra-Legality of International Human Rights Treaties and Constitutional Interpretation

Antonio Maués 

Universidade Federal do Pará

August 1, 2012

SUR International Journal on Human Rights, v. 10, n. 18, Jun. 2013 

Abstract:

In December 2008, when ruling on a number of cases involving the civil imprisonment of unfaithful trustees, the Supreme Court modified its understanding of the hierarchy of international human rights treaties in Brazilian law, adopting the thesis of supra-legality. This article analyzes the potential impacts that this change can have on constitutional interpretation in Brazil, examining how the Supreme Court has applied the thesis of supra-legality and the extent to which the hierarchy of international human rights treaties has influenced, in other countries, their use in interpreting the Constitution. The article concludes that supra-legality allows for the construction of arguments in favor of using human rights treaties as a parameter of constitutional interpretation in Brazilian law.

Number of Pages in PDF File: 30

Disponível: <http://ssrn.com/abstract=2401224>. Acesso em 28 mar. 2014.

Article: Effective Client Interviewing and Counseling

Oscar Javier Salinas 

University of North Carolina (UNC) at Chapel Hill - School of Law

February 2014

Abstract:

Our success in helping our clients often depends on how effective we are in developing a strong professional relationship with them. Strong professional relationships build on trust, comfort, and communication. Effective client interviewing and counseling can facilitate the development of a strong professional relationship with our clients. 

This article provides a brief summary of effective client interviewing and counseling. The first section outlines the format for a general client interview. The second section provides short descriptions for each part of the client interview. The third section highlights some fundamental counseling skills that may improve how effectively we interview and counsel our clients.

Number of Pages in PDF File: 11

Disponível em: <http://ssrn.com/abstract=2401119>. Acesso em 28 mar. 2014.

Article: Upending a Global Debate: An Empirical Analysis of the U.S. Supreme Court's Use of Transnational Law to Interpret Domestic Doctrine

Ryan C. Black 

Michigan State University - Department of Political Science

Ryan J. Owens 

University of Wisconsin - Madison - Department of Political Science

Daniel E. Walters 

University of Wisconsin - Madison; University of Pennsylvania Law School

Jennifer Williams 

University of Wisconsin - Madison

February 25, 2014

Georgetown Law Journal, Forthcoming

U of Penn Law School, Public Law Research Paper No. 14-9

Abstract:

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical work on the conditions under which Supreme Court Justices actually use transnational law. Is it in fact the case that only liberal Justices employ transnational law — or do conservatives as well? In addition, there is little work on which countries Justices cite when they do use transnational law. Do they cherry pick whichever country works best in the given case, or is there a lower bound of plausibility when selecting countries to examine and cite? 

The authors provide the most systematic empirical exploration of the Court’s use of transnational law to date. Their results challenge conventional wisdom and prove to upend the existing debates over transnational law. The data show that Justices are more likely to reference transnational law when they exercise judicial review and when they overturn precedent, which likely explains much of the controversy around the practice. Importantly, the data show, further, that all Justices cite transnational law. Liberals cite transnational law when they render liberal decisions, and conservatives cite transnational law when they render conservative decisions. Liberals and conservatives alike employ such law because they are both ideologically conscious, strategic judicial actors who seek to support their decisions with as much persuasive material as possible. Finally, the results suggest that Justices cite countries with regard to their political and legal characteristics. They cite what the public would consider to be among the most legitimate countries across the globe. In other words, on the whole, Justices seem to borrow from countries most like the U.S. Whether these results are good or bad is unclear; what is clear, however, is that the normative debate over using transnational law must take a turn and address the authors’ findings.

Number of Pages in PDF File: 44

Disponível em: <http://ssrn.com/abstract=2401116>. Acesso em 28 mar. 2014.