Constitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African Constitution’s Local and International Influence (DixonRosalind & RouxTheunis eds., Cambridge University Press, 2018)

We have the pleasure of introducing this sixty-eighth volume of the American Journal of Comparative Law. This volume marks the eighth year of our tenure. Probably because we agree on the essentials, the heavy workload has not lessened our enthusiasm.

This is the Thirty-Fourth Annual Survey of American Choice-of-Law Cases.1 It is written at the request of the Association of American Law Schools (AALS) Section on Conflict of Laws,2 and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside of the United States.3 Its purpose remains the same as it has been from the beginning: to inform, rather than to

This Article investigates how contemporary laws of war rationalize civilian deaths. I concentrate on two specific legal constructions in warfare: the definition of civilian/combatant and the principle of distinction. (The categories of civilian and combatant should be understood as dialogically constitutive and not entirely distinct. In addition, the category of “civilian” is a modern one and premodern

AbstractIn this Article, I examine jurisprudence textbooks and related works written in British India in the late nineteenth and early twentieth centuries. Some of the jurisprudential works from India were not merely summaries of the leading English books, but were different from English works in three senses. First, the gap between English theories and Indian legal realities led some authors to question

The American Journal of COMPARATIVE LAW

AbstractComparison is a key component of legal reasoning. We move merrily from like to like within the doctrine of precedent. We invoke comparison whenever we distinguish or apply a case. This Article begins by elucidating how comparison is present in law. The Article shows how law cannot function without comparison, and how the legal world skips over the central role comparison plays in these matters

Why did two leading European countries (Prussia and England), which at first sight appeared to have much in common, enact radically different divorce legislation during the eighteenth century? This Article takes a close look at each country’s reforms, their legislative history, and their likely effects in an effort to tease out what motives lay behind them. And by connecting the legal changes to the

DrolshammerJens & WeberRolf, Wie Das Recht Auf Reisen Geht (Stämpfli, 2019)

Abou-Nigm, V.R., McCall-Smith, K. & French, D. (eds.), Linkages and Boundaries in Private and Public International Law (2020).

Seong-Hak KimMarie, Constitutional Transition and the Travail of Judges: The Courts of South Korea (Cambridge University Press, 2019)

This Article argues that democratic backsliding is operationalized through selective government funding of private speech. Subsidized speech can leverage the government’s voice while silencing or diminishing voices that seek to challenge the government’s message or create the background conditions for critical faculties. This leveraging, in turn, serves to entrench the power of the political majority

Richard Albert has written a very interesting book discussing various methods of constitutional amendment, which offers a sophisticated multilevel analysis of the topic. Albert draws from comparative, doctrinal, historical, and theoretical perspectives to show how constitutions structure their amendment rules and to explain when amendment is appropriate and when it is not. He discusses how amendment

LehaviAmnon, Property Law in a Globalizing World (Cambridge University Press, 2019)

“When is a constitutional amendment an amendment in name alone?”11 Richard Albert poses that question at the very start of Constitutional Amendments: Making, Breaking and Changing Constitutions in which he convincingly demonstrates that this long neglected topic is an essential aspect of constitutional law and constitutionalism.

AbstractThis Article maps the criminal law system in Saudi Arabia. Saudi Arabia enacted a criminal procedure code in 2001, but it lacks a comprehensive penal code, relying instead on (i) identifications of certain acts as violations of the law (from public behavior to matters of the state administrative cogwheel) scattered in various pieces of legislation and (ii) the classical Islamic legal tradition’s

AbstractThe European Union (EU) and the Association of Southeast Asian Nations (ASEAN) have developed fundamentally different regional regimes to address human trafficking despite both drawing on the framework established by the U.N. Palermo Protocol. These regimes have been deployed to achieve different missions: crime control animates the European framework whereas migration management informs the

ButlerGraham, Constitutional Law of the EU’s Common Foreign and Security Policy: Competence and Institutions in External Relations (Hart, 2019)

A common skeptical view holds that socioeconomic rights are a different kind of right than civil-political rights. Even those who support justiciable socioeconomic rights often see them as a different kind of right with special challenges. I argue that this view is wrong. What all these observers are reacting to is not an inherent property of socioeconomic rights: it is a contingent property of a situation

AbstractIs your name “yours”? Are you free to choose a name for yourself? Does a name withstand border crossing and even the acquisition of new citizenships? In the common law world, the unequivocal answer is yes. However, in civil law, this answer is not so clear. While the global tendency over the last few decades has been towards relaxing the norms governing names, old traditions die hard, and in

AbstractHow do legal imagination, metaphors, and the “judicial frame” impact the degree of protection for free expression when the relevant (technological) playground is the world of bits? This Article analyzes the so-called judicial frame, focusing on legal disputes relating to freedom of expression on the Internet. The authors compare the European Court of Human Rights and the U.S. Supreme Court

If you want to know about Ole Lando, you can do no better than read his own memoir, “My Life as a Lawyer,” published in the Zeitschrift für Europäisches Privatrecht in 2002.11 There he sets out in characteristically short and pithy sentences the facts of his eighty years to that point, along with an account of the intellectual trajectory that saw him move from the deep study of international private

SweetAlec Stone & MathewsJud, Proportionality Balancing and Global Governance: A Comparative and Global Approach (Oxford University Press, 2019)

AbstractThis Article places the recent evolution of U.S. personal jurisdiction in comparative context. Comparativism helps illuminate and explain both the modest convergences and the more pervasive divergences. On the convergences side, the Supreme Court’s acknowledgment of transnational litigation and express invocation of European approaches to personal jurisdiction have helped move general jurisdiction

This Article examines how wealthy democratic states evade and avoid their international obligations towards refugees. The focus is on two strategies. The first is hyper-legalism—an overly formalistic bad-faith approach to interpreting international law. The second is obfuscation, which involves secrecy about what actions the government is taking and deliberate silence as to the purported legal justifications

AbstractLegal systems differ about the availability of specific performance as a remedy for breach of contract. While common law systems deny specific performance in all but exceptional cases, civil law systems generally award enforcement remedies subject to some exceptions. However, there is an ongoing debate about the extent to which the practice of litigants and courts actually reflects the doctrinal

We have the pleasure of introducing this sixty-eighth volume of the American Journal of Comparative Law. This volume will mark the seventh year of our tenure, a time during which the Journal has become a—rewarding and demanding—part of our daily routine.

AbstractThe European Union is undergoing a structural transformation—a regression from integration through law as an anti-hegemonic project of equal membership to a condition in which member state orders, under a transformed European Union law, gravitate around unequal relations of subordination. Alongside the surveillance mechanisms that constrain the member states to conform to the requirements of

This is the Twenty-Ninth Annual Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws, and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside the United States.This Survey covers cases decided by American state and federal appellate courts from January 1 to December

This paper is a review of Gerardo Pisarello’s book, Procesos Constituyentes: Caminos para la Ruptura Democratica. This book examines constitution-making as a global phenomenon, both from a historical and comparative perspective. The author of this paper proposes that a more decisive move from the descriptive to the normative would have been desirable, but concludes that Pisarello’s book should become

In the legal system of the premodern Middle East, the closest thing to an autonomous private organization was the Islamic waqf. This non-state institution inhibited political participation, collective action, and rule of law, among other indicators of democratization. It did so through several mechanisms. Its activities were essentially set by its founder, which limited its capacity to meet political

This bibliography covers private international law or conflict of laws in a broad sense. In particular, it covers judicial or adjudicatory jurisdiction, prescriptive jurisdiction, choice of forum, choice of law, federal-state conflicts, recognition and enforcement of sister-state and foreign-country judgments, extraterritoriality, arbitration and related topics. It includes books and law journal articles

American and Brazilian courts are traveling quite different paths regarding the question of racial justice. Race neutrality has become an influential interpretive approach in both jurisdictions, a perspective that articulates a depiction of these nations as culturally homogenous societies with the defense of liberal principles as a necessary requirement for social cohesion. Because of the representation

Colonization has created a unique opportunity to test the endurance of legal transplants. Using a sample of seven former French colonies in West Africa, we examine how much of the colonial penal code has been retained by modern countries. This is done using a computer program that matches each article from the colonial code to the article most similar to it in each contemporary code. This novel algorithmic

In recent years, many have come to consider the right to exclude as the Punctum Archimedis that the concept of property is based upon. In the present article, I seek to re-evaluate the relations between property and exclusivity from an unusual vantage point: a comparison between two deeply-rooted legal traditions – Anglo-American law and Jewish law. For this purpose, I analyze four fundamental doctrinal

This article advances the comparative constitutional literature by examining the exercise of remedial discretion in rights litigation. It compares how the Supreme Court of Canada and the Constitutional Court of South Africa remedy unconstitutional legislation under their respective, relatively new, bills of rights. It uses an internal legal approach and, rejecting universalism and convergence, it pays