This book uniquely focuses on the role of family law in transnational marriages. The author demonstrates how family law is of critical importance in understanding transnational family life. Based on extensive field research in Morocco, Egypt and the Netherlands, the book examines how, during marriage and divorce, transnational families deal with the interactions of two different legal systems. Sportel studies the interactions of European and Islamic family law, addressing its interconnections with migration and everyday life, within the context of highly politicised debates on gender, Islam, migration and the family. The book will be of interest to scholars and students of family sociology, migration and diaspora studies, transnational families, family law, and sociology of law.

This anthology provides an in-depth analysis and discusses the issues surrounding nudging and its use in legislation, regulation, and policy making more generally. The 17 essays in this anthology provide startling insights into the multifaceted debate surrounding the use of nudges in European Law and Economics. Nudging is a tool aimed at altering people's behaviour in a predictable way without forbidding any option or significantly changing economic incentives. It can be used to help people make better decisions to influence human behaviour without forcing them because they can opt out. Its use has sparked lively debates in academia as well as in the public sphere. This book explores who decides which behaviour is desired. It looks at whether or not the state has sufficient information for debiasing, and if there are clear-cut boundaries between paternalism, manipulation and indoctrination. The first part of this anthology discusses the foundations of nudging theory and the problems associated, as well as outlining possible solutions to the problems raised. The second part is devoted to the wide scope of applications of nudges from contract law, tax law and health claim regulations, among others. This volume is a result of the flourishing annual Law and Economics Conference held at the law faculty of the University of Lucerne. The conferences have been instrumental in establishing a strong and ever-growing Law and Economics movement in Europe, providing unique insights in the challenges faced by Law and Economics when applied in European legal traditions.

This book presents a critical analysis of the rules on the contents and effects of contracts included in the proposal for a Common European Sales Law (CESL). The European Commission published this proposal in October 2011 and then withdrew it in December 2014, notwithstanding the support the proposal had received from the European Parliament in February 2014. On 6 May 2015, in its Communication 'A Digital Single Market Strategy for Europe', the Commission expressed its intention to "make an amended legislative proposal (...) further harmonising the main rights and obligations of the parties to a sales contract". The critical comments and suggestions contained in this book, to be understood as lessons to learn from the CESL, intend to help not only the Commission but also other national and supranational actors, both public and private (including courts, lawyers, stakeholders, contract parties, academics and students) in dealing with present and future European and national instruments in the field of contract law. The book is structured into two parts. The first part contains five essays exploring the origin, the ambitions and the possible future role of the CESL and its rules on the contents and effects of contracts. The second part contains specific comments to each of the model rules on the contents and effects of contracts laid down in Chapter 7 CESL (Art. 66-78). Together, the essays and comments in this volume contribute to answering the question of whether and to what extent rules such as those laid down in Art. 66-78 CESL could improve or worsen the position of consumers and businesses in comparison to the correspondent provisions of national contract law. The volume adopts a comparative perspective focusing mainly, but not exclusively, on German and Dutch law.

This edited volume examines two recent Central European recodifications of civil law. The contributors present and discuss the regulation and the fundamental changes related to the new Civil Codes in each country. They also highlight the novelties and some of the issues of great debate of the new regulation. The papers investigate specific parts of the two Civil Codes. Coverage reviews default rules of legal persons and companies, key issues of the new regulations of property law, and the topic of intellectual property. The contributors also consider the law of obligation, unforeseeable changes in circumstances in contracts, family law and law of succession, and more. Hungary and Romania connect to each other by their special historical and cultural background, which serves as a solid basis of great cooperation. This volume shows how the two countries view civil law. It offers readers straightforward and practice-oriented knowledge on the subject.

Rights, Wrongs, and Injustices is the first comprehensive account of the scope, foundations, and structure of remedial law in common law jurisdictions. The rules governing the kinds of complaints that common law courts will accept are generally well understood. However, the rules governing when and how they respond to such complaints are not. This book provides that understanding. It argues that remedies are judicial rulings, and that remedial law is the law governing their availability and content. Focusing on rulings that resolve private law disputes (for example, damages, injunctions, and restitutionary orders), this book explains why remedial law is distinctive, how it relates to substantive law, and what its foundational principles are. The book advances four main arguments. First, the question of what courts should do when individuals seek their assistance (the focus of remedial law) is different from the question of how individuals should treat one another in their day-to-day lives (the focus of substantive law). Second, remedies provide distinctive reasons to perform the actions they command; in particular, they provide reasons different from those provided by either rules or sanctions. Third, remedial law has a complex relationship to substantive law. Some remedies are responses to rights-threats, others to wrongs, and yet others to injustices. Further, remedies respond to these events in different ways: while many remedies (merely) replicate substantive duties, others modify substantive duties and some create entirely new duties. Finally, remedial law is underpinned by general principles-principles that cut across the traditional distinctions between so-called "legal" and "equitable" remedies. Together, these arguments provide an understanding of remedial law that takes the concept of a remedy seriously, classifies remedies according to their grounds and content, illuminates the relationship between remedies and substantive law, and presents remedial law as a body of principles rather than a historical category.

This book deals with the contractual platform for arbitration and the application of contractual norms to the parties' dispute. Arbitration and agreement are inter-linked in three respects: (i) the agreement to arbitrate is itself a contract; (ii) there is scope (subject to clear consensual exclusion) in England for monitoring the arbitral tribunal's fidelity and accuracy in applying substantive English contract law; (iii) the subject-matter of the arbitration is nearly always a 'contractual' matter. These three elements underlie this work. They appear as Part I (arbitration is founded on agreement), Part II (monitoring accuracy), Part III (synopsis of the English contractual rules frequently encountered within arbitration). The book will be a useful resource to foreign lawyers or English non-lawyers, English lawyers seeking a succinct discussion, and to arbitral tribunals.

This book is about one of the most controversial dilemmas of contract law: whether or not the unexpected change of circumstances due to the effects of financial crises may under certain conditions be taken into account. Growing interconnectedness of global economies facilitates the spread of the effects of the financial crises. Financial crises cause severe difficulties for persons to fulfill their contractual obligations. During the financial crises, performance of contractual obligations may become excessively onerous or may cause an excessive loss for one of the contracting parties and consequently destroy the contractual equilibrium and legitimate the governmental interventions. Uncomfortable economic climate leads to one of the most controversial dilemmas of the contract law: whether the binding force of the contract is absolute or not. In other words, unstable economic circumstances impose the need to devote special attention to review and perhaps to narrow the binding nature of a contract. Principle of good faith and fair dealing motivate a variety of theoretical bases in order to overcome the legal consequences of financial crises. In this book, all these theoretical bases are analyzed with special focus on the available remedies, namely renegotiation, rescission or revision and the circumstances which enables the revocation of these remedies. The book collects the 19 national reports and the general report originally presented in the session regarding the Effects of Financial Crises on the Binding Force of Contracts: Renegotiation, Rescission or Revision during the XIXth congress of the International Academy of Comparative Law, held in Vienna, July 2014.

The right information, at the right time, for the right user has become the most valuable currency of our times. Yet, traditional view on the use of information is being challenged: never before both businesses and users had to deal with the necessity of processing enormous amounts of data, often either privacy-sensitive or covered by intellectual property rights. The law tries to respond - both domestically and internationally - with new rules and novel applications of traditional rules. This book investigates these rules, their rationales, and consequences.

In recent years, much political and legal debate has centered on the class action lawsuit. Many lawyers and judges have noted the intense pressure to settle caused by the very filing of a suit. Some contend that the procedure amounts to a form of judicial blackmail. Others counter that it is an effective means of policing corporate behavior and assuring injured victims' fair compensation.
This book represents the first scholarly effort to view the modern class action comprehensively through the lenses of American political and constitutional theory. Redish argues that the modern class action undermines foundational constitutional principles, including procedural due process and separation of powers, and has been improperly transformed from its origins as a complex procedural device into a means for altering controlling substantive law in highly undemocratic ways. Redish proposes an alternative vision of the class action lawsuit, one that is designed to enable the device to serve its valuable procedural purposes without simultaneously contravening core precepts of American constitutional democracy.

The rapid development of China's economy has resulted in various kinds of conflict of interest (COI). This study focuses on how COI is resolved in Chinese civil court hearings via discourse information processing. Based on Discourse Information Theory, and the notions of Context Model Schema and Discourse Space, an analytical framework is constructed for the description, analysis and interpretation of the language used in Chinese court hearings. Data analysis has revealed the following major findings: a) litigants in Chinese civil court hearings mainly resort to three information categories when making interest appeals: subjective, objective and explanatory information; b) the process of interest negotiation in court hearings is greatly influenced by such sociological, psychological and discursive factors as identities, intentions, information sharing status, discourse expectations, etc.; and c) different discourse management strategies are adopted to promote conciliation between litigants, among which information management, cognitive management and linguistic management are the most frequently used.

This volume takes stock of the rapid changes to the law of unjust enrichment over the last decade. It offers a set of original contributions from leading private law theorists examining the philosophical foundations of the law. The essays consider the central questions raised by demarcating unjust enrichment as a separate area of private law - including how its normative foundations relate to those of other areas of private law, how the concept of enrichment relates to property theory, how the remedy of restitution relates to principles of corrective justice and what role mental elements should play in shaping the law.

Dieses Buch beschaftigt sich mit Insolvenzfallen, bei denen die Insolvenzmasse zu einem Zeitpunkt der Verfahrensabwicklung allenfalls die Kosten des Insolvenzverfahrens deckt. Diese Lage tritt vielfach auf und gehoert zu den Standardproblemen, mit denen sich Insolvenzverwalter und Berater auseinandersetzen mussen. Rechtsdogmatische Stimmigkeit und Praxisorientierung verbinden sich bei den vorgeschlagenen Loesungen. Bei Eintritt der Massearmut - der Massebedurftigkeit gem. 207 InsO oder der Masseunzulanglichkeit nach den 208 ff. InsO - hat die hoechstrichterliche Rechtsprechung das Verfahren von einer Notabwicklung hin zu einer besonderen Form der Insolvenzverwaltung mit dem Ziel entwickelt, dem Insolvenzverwalter eine optimale Verwertung der Masse zu ermoeglichen und dabei seine Haftungsrisiken zu verringern. Dabei stehen die Risiken im Vordergrund, die bei einer Fortfuhrung des insolvenzschuldnerischen Betriebes auftreten. Besonderes Augenmerk wird auf die Moeglichkeiten einer Verfahrensgestaltung durch Insolvenzplane nach 210a InsO gelegt. Die Massebedurftigkeit (Massearmut i.e.S.) gem. 207 InsO wird in ihren Voraussetzungen und Rechtsfolgen fur die Abwicklung des Verfahrens eingehend dargestellt und dabei insbesondere die Handlungsmoeglichkeiten des Insolvenzverwalters beleuchtet. Der Schwerpunkt der Darstellung liegt bei der Behandlung der Masseunzulanglichkeit gem. 208 ff. InsO. Aus den dabei behandelten Fragen sind hervorzuheben: Voraussetzungen der Anzeige der Masseunzulanglichkeit; Ermessen des Insolvenzverwalters bei der Wahl des Zeitpunktes der Anzeige Prozessuale Wirkungen der Anzeige auf die Rechtsdurchsetzung der Masseglaubiger Probleme einer zweiten Masseunzulanglichkeit und deren Auswirkung auf die Rechtsstellung der Neumasseglaubiger Verjahrung von Masseforderung nach Wiederherstellung der Massesuffizienz Insolvenzplane bei Masseunzulanglichkeit Fragen der Haftung des Insolvenzverwalters: Verhaltnis der Haftungstatbestande der 60 und 61 InsO

The revised edition 2009 particularly focuses on the legal aspects of the securitization of debt by a security right in land (with refinancing register), the consequences of the mortgage crisis, the Bavarian legal proposal for a law to protect the borrower, and the question of which objections the legal successor in a security right in land will be confronted with. The law of compulsory mortgages and the security contract on land charges has also been extensively revised.

Es gibt eine Vorgeschichte des Ehebruchromans, der in der zweiten Halfte des 19. Jahrhunderts zu einem gesamteuropaischen literarischen Paradigma wurde. Im Zuge der Franzoesischen Revolution entsteht eine sakulare Ehegesetzgebung, die einen metaphorischen UEberschuss produziert, der bis heute wirksam ist. Das Buch zeichnet rechtshistorisch und anhand kanonischer literarischer Texte von Rousseau uber Goethe und Manzoni bis hin zu Hugo und Flaubert nach, wie die Ehe um 1800 zu einer Reflexionsfigur fur den modernen Nationalstaat werden konnte. Dabei entstehen originelle Beitrage zur Philologie der einzelnen Texte. Zugleich werden Recht und Literatur fur eine historische Semantik von Gesellschaft und Gemeinschaft fruchtbar gemacht.

Access to justice, equality before the law, and the rule of law are three fundamental values underpinning the civil justice system. This book examines these values and how, although they do not have great leverage in decision making by the courts, they are a crucial foundation of the civil justice system and a powerful argument for arrangements such as legal aid, the impartial application of law, and the independence of the judiciary. The second theme of this book concerns the role of procedure, often regarded as of secondary importance compared with substantive law. Taking the definition of procedure at its widest, the book discusses Lord Woolf's Inquiry, and demonstrates how procedural reform can maximize a fundamental value like access to justice. This linkage is furthered in a later analysis of access to justice comparatively, in relation to civil and commercial law. Thirdly, the book looks at understanding how law works, and how it could be made to work better, and concludes that this demands both a knowledge of law and of law's context. This theme offers a framework for the book, which then goes on to deal with the machinery of the law, and discusses what the courts do, civil procedure, and the ethics of lawyer's conduct, all in relation to the broader context of access to justice. This broader context of the law is particularly prominent in the latter half of the book which deals with various dimensions of the impact of the law. Including studies of civil and social rights in practice, the role of European law in the destruction of Aboriginal society in Australia, and commercial law in Asia, these examples raise issues about the gap between the law and reality, the potential law has to destroy social patterns, and the relationship between law and economic development. This is a thought-provoking, critical exploration which has much to offer those interested in the operation of the civil justice system.

Dieses Buch beschreibt die Anforderungen an das Identitatsmanagement im Cloud Computing aus rechtlicher und oekonomischer Sicht. Cloud Computing entwickelt sich zu einer Basistechnologie der digitalen Gesellschaft. Entsprechend wichtig ist es, den Zugriff Unbefugter auf Cloud-Dienste abzuwehren. Schlusselfaktoren sind hier das Identitatsmanagement sowie die Abwehr von Identitatsdiebstahl und Identitatsmissbrauch. Das Werk stellt den rechtlichen Rahmen des Identitatsmanagements im Cloud Computing inklusive des IT-Sicherheitsgesetzes dar und entwickelt aus oekonomischer Perspektive quantitative Modelle technischer Angriffsszenarien und Abwehrmassnahmen fur typische Nutzungsformen von Cloud-Anwendungen. Unter Berucksichtigung der rechtlichen und oekonomischen Rahmenbedingungen werden sodann konkrete rechtliche Pflichten zur Vornahme bestimmter Schutzmassnahmen identifiziert und somit die rechtlichen Anforderungen des Identitatsmanagements praxisgerecht konkretisiert.

Auch in der 10. Auflage des Emmerich/Sonnenschein, Miete, wird das gesamte Mietrecht systematisch, zuverlassig und aktuell dargestellt. Der Kommentar ist fur die tagliche Praxis konzipiert. Gesetzgebung, Rechtsprechung, insbesondere die umfangreiche hoechstrichterliche Rechtsprechung, und Literatur sind bis April 2011 luckenlos ausgewertet und eingearbeitet. Der Schwerpunkt der Kommentierung liegt auf der Wohnraummiete, aber auch die Miete von gewerblichen Raumen, Grundstucken und anderen Sachen sind berucksichtigt. UEberdies enthalten:eine ausfuhrliche Kommentierung der mietrechtlich relevanten Bestimmungen des Allgemeinen Gleichbehandlungsgesetzes (AGG) und die Heizkostenverordnung.

In the mid 1980s, there was a crisis in the availability, affordability, and adequacy of liability insurance in the United States and Canada. Mass tort claims such as the asbestos, DES, and Agent Orange litigation generated widespread public attention, and the tort system came to assume a heightened prominence in American life. While some scholars debate whether or not any such crisis still exists, there has been an increasing political, judicial and academic questioning of the goals and future of the tort system.
Exploring the Domain of Tort Law reviews the evidence on the efficacy of the tort system and its alternatives. By looking at empirical evidence in five major categories of accidents--automobile, medical malpractice, product-related accidents, environmental injuries, and workplace injuries--the authors evaluate the degree to which the tort system conforms to three normative goals: deterrence, corrective justice, and distributive justice. In each case, the authors review the deterrence and compensatory properties of the tort system, and then review parallel bodies of evidence on regulatory, penal, and compensatory alternatives.
Most of the academic literature on the tort system has traditionally been doctrinal or, in recent years, highly theoretical. Very little of this literature provides an in-depth consideration of how the system works, and whether or not there are any feasible alternatives. Exploring the Domain of TortLaw contributes valuable new evidence to the tort law reform debate. It will be of interest to academic lawyers and economists, policy analysts, policy professionals in government and research organizations, and all those affected by tort law reform.

The book is a brief journey through centuries and jurisdictions and expands on examples of enactment practices of states that support, challenge or even reject communication during pending litigations. England, as the main representative of a jurisdiction, suggests communication solutions potentially different than the practice in the United States where litigation communication first time occurred. Accordingly, the author offers a comprehensive analysis and detailed historical narrative of the positions of various jurisdictions in relation to communication in the legal process. As a kind of applied legal history, the book provides an exploration of historical events that were significant in a legal communication context and addresses their implications for modern enactments. The account looks at the history of regulations to allow a better understanding of the strict rules that have often been cited over the years support or restrict communication in the legal process. The author provides the reader with proper contexts on different judicial and communication considerations, as well as the collaboration of legal and public relations experts, in a particular form of crisis and reputation management, in the litigation process. As such, this book is an attempt to present an accurate and thoughtful account of the theory and history of litigation communication, which is directly relevant in various debates such as the work on the meaning and context of the Contempt of Court Act in England or the American First and Sixth Amendments in different centuries.

This book shows the surprising dynamism of the field of civil procedure through its examination of a cross section of recent developments within civil procedure from around the world. It explores the field through specific approaches to its study, within specific legal systems, and within discrete sub-fields of civil procedure. The book reflects the latest research and conveys the dynamism and innovations of modern civil procedure - by field, method and system. The book's introductory chapters lay the groundwork for researchers to appreciate the flux and change within the field. The concluding chapters bring the many different identified innovations and developments together to show the field's ability to adapt to modern circumstances, while retaining its coherence even across different legal systems, traditions, fields and analytic approaches. Specifically, in this book the presence of dynamism is explored in the legal systems of the EU, France, the US, Brazil, Australia, the UK and China. So too that dynamism is explored in the contributions' analyses and discussions of the changes or need for change of specific aspects of civil procedure including litigation costs, class actions, derivative actions, pleadings, and res judicata. Furthermore, most of the individual contributions may be considered to be comparative analyses of their respective subjects and, when considered as a whole, the book presents the dynamism of civil procedure in comparative perspective. Those discrete and aggregated comparative analyses permit us to better understand the dynamism in civil procedure - for change in the abstract can be less visible and its significance and impact less evident. While similar conclusions may have been drawn through examinations in isolation, employing comparative analytic methods provided a richer analysis and any identified need for change is correspondingly advanced through comparative analysis. Furthermore, if that analysis leads to a conclusion that change is necessary then comparative law may provide pertinent examples for such change - as well as methodologies for successfully transplanting any such changes. In other words, as this book so well reflects, comparative law may itself usefully contribute to dynamism in civil procedure. This has long been a raison d'etre of comparative law and, as clear from this book's contributions, in this particular time and field of study we find that it is very likely to achieve its lofty promise.

This book focuses on the analysis of liability rules of tort law from an efficiency perspective, presenting a comprehensive analysis of these rules in a self-contained and rigorous yet accessible manner. It establishes general results on the efficiency of liability rules, including complete characterizations of efficient liability rules and efficient incremental liability rules. The book also establishes that the untaken precaution approach and decoupled liability are incompatible with efficiency. The economic analysis of tort law has established that for efficiency it is necessary that each party to the interaction must be made to internalize the harm resulting from the interaction. The characterization and impossibility theorems presented in this book establish that, in addition to internalization of the harm by each party, there are two additional requirements for efficiency. Firstly, rules must be immune from strategic manipulation. Secondly, rules must entail closure with respect to the parties involved in the interaction giving rise to the negative externality, i.e., the liability must not be decoupled.