In "Legal Transplants," one of the world's foremost authorities on legal history and comparative law puts forth a clear and concise statement of his controversial thesis on the way that law has developed throughout history.

When it was first published in 1974, "Legal Transplants" sparked both praise and outrage. Alan Watson's argument challenges the long-prevailing notion that a close connection exists between the law and the society in which it operates. His main thesis is that a society's laws do not usually develop as a logical outgrowth of its own experience. Instead, he contends, the laws of one society are primarily borrowed from other societies; therefore, most law operates in a society very different from the one for which it was originally created. Utilizing a wealth of primary sources, Watson illustrates his argument with examples ranging from the ancient Near East, ancient Rome, early modern Europe, Puritan New England, and modern New Zealand. The resulting picture of the law's surprising longevity and acceptance in foreign conditions carries important implications for legal historians and sociologists. The law cannot be used as a tool to understand society, Watson believes, without a careful consideration of legal transplants.

For this edition, Watson has written a new afterword in which he places his original study in the context of more recent scholarship and offers some new reflections on legal borrowings, law, and society.

This book offers a comparative analysis of the domain name registration systems utililsed in Australia and the United Kingdom. Taking an international perspective, the author analyses the global trends and dynamics of the domain name registration systems and explores the advantages and disadvantages of restrictive and less restrictive systems by addressing issues of consumer protection. The book examines the regulatory frameworks in the restrictive and unrestrictive registration systems and considers recent developments in this area. Jenny Ng also examines the legal and economic implications of these regulatory frameworks, drawing upon economic theory, regulatory and systems theory as well as applying rigorous legal analysis. In doing so, this work proposes ways in which such systems could be better designed to reflect the needs of the specific circumstances in individual jurisdictions. The Domain Name Registration System will be of particular interest to academics and students of IT law and e-commerce.

This edited volume is a comprehensive examination of the legal framework in which environmental policy is fashioned in the major English-speaking federations-the United States, Canada, and Australia. The need for national solutions to environmental problems emerged long after the largest share of governmental power was allotted to states or provinces. This volume attempts to solve the paradox of how a country can have effective laws protecting the environment, vigorously enforced, when legislative and administrative powers are divided between two tiers of government. The contributors analyze environmental lawmaking along three dimensions. Part I describes the formal constitutional allocation of powers between states or provinces and the federal government, concluding that on paper environmental protection is essentially a local responsibility, although the reality is far different. In Part II the contributors explore the extent to which governments resort to informal negotiations among themselves to resolve environmental disputes. Part III is a thorough canvassing of the judiciary's role in making environmental policy and resolving disputes between levels and branches of government. In Australia and Canada, the courts play a relatively less important role in formulating policy than in the United States. In conclusion, the work shows that the level of environmental protection is relatively high in these three federations. Environmental politics, the work suggests, may be less divisive in federations than in unitary systems with comparable levels of development.

While jury decision making has received considerable attention from social scientists, there have been few efforts to systematically pull together all the pieces of this research. In Jury Decision Making, Dennis J. Devine examines over 50 years of research on juries and offers a "big picture" overview of the field. The volume summarizes existing theories of jury decision making and identifies what we have learned about jury behavior, including the effects of specific courtroom practices, the nature of the trial, the characteristics of the participants, and the evidence itself. Making use of those foundations, Devine offers a new integrated theory of jury decision making that addresses both individual jurors and juries as a whole and discusses its ramifications for the courts. Providing a unique combination of broad scope, extensive coverage of the empirical research conducted over the last half century, and theory advancement, this accessible and engaging volume offers "one-stop shopping" for scholars, students, legal professionals, and those who simply wish to better understand how well the jury system works.

Plea bargaining avoids a lengthy and costly criminal trial and thus enables courts to deal with a large number of cases very quickly. While it has often been argued that modern criminal justice systems cannot afford to abolish plea bargaining, academics long have criticised it for undermining the rule of law by avoiding procedural safe-guards. This book analyses plea bargain in different families of law, and drawing on these findings ask to what extent this practice should be developed in international criminal law. The book analyses the relationship between values and practice in modern criminal justice systems through the example of plea bargaining comparing the development and practice of plea bargaining in different systems. The book sets out in-depth studies of consensual case dispositions in the UK, setting out how plea bargaining has developed and spread in England and Wales. It discusses in detail the problems that this practice poses for the rule of law as well as well as the principles of adversarial litigation. The book considers plea-bargaining in the USA as well as in the civil law German justice system. The book also draws on empirical research looking at the absence of informal settlements in the former GDR, offering a unique insight into criminal procedure in a socialist legal system that has been little studied. The book then goes on to look at international criminal law and examine the use of informal negotiations in the International Criminal Tribunal for former Yugoslavia and the International Criminal Tribunal for Rwanda and the possible use in future cases of the International Criminal Court.

Leniency policies are seen as a revolution in contemporary anti-cartel law enforcement. Unique to competition law, these policies are regarded as essential to detecting, punishing and deterring business collusion - conduct that subverts competition at national and global levels. Featuring contributions from leading scholars, practitioners and enforcers from around the world, this book probes the almost universal adoption and zealous defence of leniency policies by many competition authorities and others. It charts the origins of and impetuses for the leniency movement, captures key insights from academic research and practical experience relating to the operation and effectiveness of leniency policies and examines leniency from the perspectives of corporate and individual applicants, advisers and authorities. The book also explores debates surrounding the intersections between leniency and other crucial elements of the enforcement system such as compensation, compliance and criminalisation. The rich critical analysis in the book draws on the disciplines of law, regulation, economics and criminology. It makes a substantial and distinctive contribution to the literature on a topic that is highly significant to a wide range of actors in the field of competition law and business regulation generally. From the Foreword by Professor Frederic Jenny ' ... fundamental questions are raised and thoroughly discussed in this book which is undoubtedly the most comprehensive scholarly work on leniency policies produced so far ... [the] book should be required reading for all seeking to acquire a deeper insight into the issues related to leniency policy. It is a priceless contribution ... '

This book fills a gap in the literature by presenting a comprehensive overview of the key issues relating to law and development in Asia. Over recent decades, experts in law and development have produced multiple theories on law and development, none of which were derived from close study of Asian countries, and none of which fit very well with the existing evidence of how law actually functioned in these countries during periods of rapid economic development. The book discusses the different models of law and development, including both the developmental state model of the 1960s and the neo-liberal model of the 1980s, and shows how development has worked out in practice in relation to these models in a range of Asian countries, including Japan, Korea, China, Thailand, Singapore, India and Mongolia. Particular themes examined include constitutionalism, judicial and legal reform; labour law; the growing importance of private rights; foreign investment and the international law of development. Reflecting the complexity of Asian law and society, both those who believe in an "Asian Way" which is radically different from law and development in other parts of the world, as well as those who believe the arc of law and development is essentially universal, will find support in this book.

The first comprehensive, international comparison of bail, this book examines how common-law countries condemn or provide alternatives to the American commercial bail bonding system. In his analysis of bail systems in 15 countries, F. E. Devine explains why other common-law countries consider the commercial provision of bail an obstruction of justice, and how they provide effective alternatives. Devine examines the pre-trial release alternatives in detail, arguing that they are at least as effective as commercial bail bonding.

Devine provides a complete, comparative analysis of bail in Australia, Canada, England, India, New Zealand and South Africa. He also examines the systems of Ireland, Malaysia, Nigeria, Pakistan, Papua New Guinea, Scotland, Tanzania, Zambia and Zimbabwe. He details the prohibition of, and statutory provisions against, commercial bail in these common-law countries, and then highlights four alternative approaches to pre-trial release: recognizance, criminal penalties, non-financial conditions, and non-commercial financial security deposits. Devine argues that these options are as effective as commercial bail. This book is valuable to scholars of criminal justice, criminology, comparative law, political science, and sociology, and to criminal justice reformers and professionals.

'Disruptive innovation', 'the fourth industrial revolution', 'one of the ten ideas that will change the world'; the collaborative/sharing economy is shaking existing norms. It poses unprecedented challenges in terms of both material policies and governance in almost all aspects of EU law. This book explores the application - or indeed inadequacy - of existing EU rules in the context of the collaborative economy. It analyses the novelties introduced by the collaborative economy and discusses the specific regulatory needs and instruments employed therein, most notably self-regulation. Further, it aims to elucidate the legal status of the parties involved (traders, consumers, prosumers) in these multi-sided economies, and their respective roles in the provision of services, especially with regard to liability issues. Moreover, it delves into a sector-specific examination of the relevant EU rules, especially on data protection, competition, consumer protection and labour law, and comments on the uncertainties and lacunae produced therein. It concludes with the acute question of whether fresh EU regulation would be necessary to avoid fragmentation or, on the contrary, if such regulation would create unnecessary burdens and stifle innovation. Taking a broad perspective and pragmatic view, the book provides a comprehensive overview of the collaborative economy in the context of the EU legal landscape.

All of these flag States have the right to sail ships flying their flag on the high seas (LOSC Article 90) ; and those ships enjo y the freedom of navigation upon the high seas (LOSC Article 87) . W ith this freedom comes a concomitant duty upon the flag State to effectively exercise its jurisdiction and control in administrative , technical , social (LOSC Article 94 (1)) and en vironmental protection (LOSC Article 217) matters over ships flying its flag. 1.2 Flag State Responsibility The absence of any authority over ships sailing the high seas would lead to chaos. One of the essential adjuncts to the principle of freedom of the seas is that a ship must fly the flag of a single State and that it is subject to the jurisdiction of that State. (Brown 1994 , p. 287) This opinion of the International Law Commission in 1956 on a draft article of the High Seas Convention (HSC) was a product of its time; a time of traditional maritime States and responsible long-established shipping companies operating for 3 the most part under the effective maritime administrations of their national flag .

These studies by a group of eminent academics and judges compare the different approaches of the British, European and American courts to the questions of free speech, which lie at the heart of much debate in constitutional law. The authors of these studies adopt opposing views, some favouring the pursuit of a US-inspired approach to protecting free speech, in the belief that the political culture of British society .would be enhanced if our courts were to fashion our common law in accordance with many First Amendment principles. Others, more sceptically, reject this embrace of US legal culture, offering distinctly "Ameri-sceptic" views and arguing for a solution based on common law principles and on the jurisprudence of the European courts.

Worldwide, the urge is being felt to pave the way towards the introduction of an electronic government. Many countries recognise the potential of digital aids in providing information and services to citizens, organisations and companies. Recent developments have put pressure on the legislature to provide an adequate legal framework for electronic administrative communication. Thus, various countries have started to draft provisions in their administrative law in order to remove legal impediments that hamper electronic services from public administrations. Written by specialists from different countries, E-Government and its Implications for Administrative Law provides an overview and analysis of such legislative developments in France, Germany, Norway and the United States. What approach has been taken in these countries? What specific provisions have been formulated to facilitate electronic administrative communication and at what level? What requirements are introduced to gain sufficient trust in electronic service delivery? In providing an in-depth analysis of the legislative projects in the various countries, this book gives a glance at the differences in policy making as well as the lessons that can be learned for future regulatory projects to amend administrative law for the digital era. This is Volume 1 in the Information Technology and Law (IT&Law) Series

Developments of the law in Japan and in Germany provide ample reason for an inquiry into "The Identity of Japanese and German Civil Law". Japanese civil law has a long tradition of absorbing and digesting foreign influences, - in particular from Germany, France, England and the United States. The absorption of foreign influences occurred on various levels: at the legislative level, in particular during the drafting process of the Civil Code, at the judicial level and in the field of scholarship. The reception of legal theories was followed by a unique process that has been characterised as "theory reception" (Kitagawa). Irrespective of such foreign influences, we can discern a unique legal tradition in Japan - in other words, its own identity. At the same time, German private law is under the influence of legal harmonisation in the EU. While the predominant view in the 1980's was still that this development was confined to a restricted area - that of "consumer law" - recent developments demonstrate that European Union legislation now influences large parts of German civil law. What does this mean in terms of the identity of German civil law? And how does this development of a "Europeanization" of German civil law affect related legal systems, such as that of Japan? The present volume contains the proceedings of a conference held in Japan in 2006 to mark the occasion of the "Germany Year in Japan". In their contributions, Japanese scholars discuss the various influences on Japanese law; German scholars enquire into the Europeanization of German private law; and finally, the identity of Japanese civil law is discussed from the perspectives of German civil law and of common law.

The essays comprising this volume are the outcome of a major and unique project which looks in detail at the application of EC law by national courts and the interaction of the demands of EC law with the constraints imposed by national legal orders and, especially, national constitutional orders. The volume comprises seven country studies which are shaped around a common research protocol. These are supplemented by three cross-cutting studies which draw on the country studies as well as on broader contextual research work aimed at trying to understand the role of the European Court of Justice in the round. The results of this multi-national research are certain to provoke widespread interest among scholars of European law, international law and European politics, for they offer the first systematic and rigorous attempt to assess the impact of the ECJ among the leading member states of the European Union.

Constitutional law in the United States and around the world now operates within an increasingly transnational legal environment of international treaties, customary international law, supranational infrastructures of human rights and trade law, and growing comparative judicial awareness. This new environment is reflected in increasing cross-national references in constitutional court decisions around the world. The constellation of legal orders in which established constitutional regimes operate has changed - there are more bodies generating law, more international legal sources, and more multi-national interactions that bring into view various legal orders. How do these transnational phenomena affect our understanding of the role of constitutions and of courts in deciding constitutional cases? Constitutional Engagement in a Transnational Era explores this question, looking at constitutional court decisions from around the world, and identifying postures of resistance, convergence or engagement with international and foreign law. For the United States, the book argues for cautious engagement by the Supreme Court with transnational sources of law in interpreting the national constitution.
Constitutional Engagement in a Transnational Era offers law school students and professors an authoritative study of comparative constitutional law by one of the most important scholars of domestic and comparative constitutional law. The book defines how international comparative experiences are relevant to constitutional analysis and discusses in detail the multiple possible connections between international law and constitutional law including a comparative overview of constitutional law in Australia, Canada, France, Germany, India, Israel, South Africa, the United Kingdom, and the United States.

A model is developed for analyzing criminal procedure across nations and cultures, and applied to the U.S., France, the U.S.S.R. and China. The model envisions common functions of arrest and detention, screening, charging and defending, trial, sanctioning and appeal. The comparison reveals significant differences between inquisitorial and adversarial systems, including the extent of court authority to control other criminal justice agencies, the defendant's role in the proceedings, and the court's role in the proceedings. Differences between noncommunist and communist inquisitorial systems involve personnel who perform each function, degrees of public participation, and the educative-rehabilitative function of the criminal justice process. Criminal Justice Abstracts The Structure of Criminal Procedure presents, for the first time ever, a detailed comparison of the criminal procedures of four major nations--France, the United States, China, and the Soviet Union. In addition, the author also develops his theory on the Morphology of Criminal Procedure which hypothesizes that there is a common structure in every modern procedural system no matter how different it may appear on the surface. He stresses six basic functions inherent in all systems--arrest and trial, detention, screening, charging and defending, trial, sanctioning, and appeal--and he successively analyzes each of them in depth. Practical ways to apply his model are provided along with encouragement for others to engage in new comparative studies, or studies of individual systems, in order to clarify the ways in which the practical demands of society, the legal profession, and legal institutions interact with the functional needs of the system to produce new ways of procedure or new ways of using old procedures.

Study compares the Swedish Child Welfare Board and the California Juvenile Court Systems. Primarily descriptive, it also surveys the international situation as to the competent organization and study of those factors which enhance the structural differentiation between juvenile and adult offenders.

This book examines the far-reaching changes made to the constitution in the United Kingdom in recent decades. It considers the way these reforms have fragmented power, once held centrally through the Crown-in-Parliament, by means of devolution, referendums, and judicial reform. It examines the reshaping of the balance of power between the executive, legislature, and the way that prerogative powers have been curtailed by statute and judicial ruling. It focuses on the Human Rights Act and the creation of the UK Supreme Court, which emboldened the judiciary to limit executive action and even to challenge Parliament, and argues that many of these symbolised an attempt to shift the 'political' constitution to a 'legal' one. Many virtues have been ascribed to these reforms. To the extent that criticism exists, it is often to argue that these reforms do not go far enough. An elected upper chamber, regional English parliaments, further electoral reform, and a codified constitution are common tonics prescribed by commentators from this point of view. This volume adopts a different approach. It provides a critical evaluation of these far-reaching reforms, drawing from the expertise of highly respected academics and experienced political figures from both the left and right. The book is an invaluable source of academic expertise and practical insights for the interested public, students, policymakers, and journalists, who too often are only exposed to the 'further reform' position.

This book investigates the extent to which the European Union intervenes, and should intervene, in domestic labour law. It examines the stated and potential rationales for EU intervention, and argues that there are considerable merits to be derived from separating out the integrationist, economic and social arguments which have been deployed in defence of EU intervention. It critically considers the competence of the EU to act in this field, and seeks to demonstrate that proper regard for the subsidiarity and proportionality principles can contribute to the legitimacy of the EU. The book is informed by the ongoing debate on governance in Europe, and aims to provide insights into the implications of shifts in policy-making technique. From the governance perspective, labour law is a particularly useful focus of study, given the range of traditional and new approaches to governance which have been attempted, from harmonisation through framework measures to the open method of coordination, and the range of actors involved in the policy making process. The intention is not to provide an exhaustive account of European intervention in the labour law arena. Instead it provides a framework to enable the reader to think about the role that the EU has, and should, play in this field, and argues that European level intervention can make a valuable contribution to the making of labour law in European Member States.

Marital rape stands at the intersection of the socio-legal issues arising from both domestic violence and sexual assault. For centuries, women who suffered sexual assault perpetrated by their spouses had no legal recourse. A man's conjugal rights included his right to have sexual intercourse with his wife regardless of whether she consented. This right has been recognised in law, and still is in some jurisdictions today. This book emerges from the research undertaken by an innovative, multi-country, academic, collaborative project dedicated to comparatively analysing the legal treatment of sexual assault in intimate relationships, with a view to challenging the legal impunity for and inadequate legal responses to this form of gendered violence.

Pure economic loss is one of the most-discussed problems in the fields of tort and contract. How do we understand the various differences and similarities between these systems and what is the extent to which there is a common-core of agreement on this question? This book takes a comparative approach to the subject, exploring the principles, policies and rules governing tortious liability for pure economic loss in a number of countries and legal systems across the world. The countries covered are USA, Canada, Japan, Israel, South Africa, Japan, Romania, Croatia, Denmark and Poland, with the contributors taking a comparative fact-based approach through the use of hypothetical problems to analyze and then summarize the individual country's tort approach. Using a fact-based questionnaire, a tested taxonomy, and a sophisticated comparative law methodology, the authors convincingly demonstrate that there are liberal, pragmatic and conservative regimes throughout the world. The recoverability of pure economic loss poses a generic question for these legal systems - it is not just a civil law versus common law issue. It will be of interest to students and academics studying tort law and comparative law in the different countries covered.

This work is a comparative examination of the uniform application of the Brussels and Lugano Conventions by courts in the UK,France, Germany, and various other European countries. It analyses evidence of inconsistent or divergent interpretations of certain contentious articles of these Conventions and the experience of litigation under them in other (French- and German-speaking) jurisdictions. The book acts as a unique repository of information and offers a detailed examination of both academic commentary and case-law from the Convention jurisdictions together with a critical appraisal of the jurisprudence of the European Court of Justice. It thus encompasses, in an accessible English form, the laws of Continental Europe, which would otherwise be out of the reach for lawyers. At appropriate points, it provides a bridge to the new regime under the Brussels I Regulation 44/2001 and Council Service Regulation 1348/2000, and the reforms underway in the draft Hague Worldwide Judgments Convention. The book will be invaluable to practitioners acting for clients on a pan-European basis who may need to know the likelihood of their clients' being sued under the Conventions in other Contracting States, their opponents' potential strategies before their own national courts, and the possible tactics that should be employed to plan for, avoid, or even block such manoeuvring. Of eventual concern to practitioners is the availability, or not, of a sympathetic recognition and enforcement regime in other Contracting States. The work highlights certain pitfalls in this regard, and most likely hurdles that certain Contracting State judgment debtors may place in the way of recognition and enforcement, and the chances of receptive or hostile treatment before certain Contracting State courts.

Modern state law excludes populations, peoples, and social groups by making them invisible, irrelevant, or dangerous. In this book, Boaventura de Sousa Santos offers a radical critique of the law and develops an innovative paradigm of socio-legal studies which is based on the historical experience of the Global South. He traces the history of modern law as an abyssal law, or a kind of law that is theoretically invisible yet implements profound exclusions in practice. This abyssal line has been the key procedure used by modern modes of domination – capitalism, colonialism, and patriarchy – to divide people into two groups, the metropolitan and the colonial, or the fully human and the sub-human. Crucially, de Sousa Santos rejects the decadent pessimism that claims that we are living through 'the end of history'. Instead, this book offers practical, hopeful alternatives to social exclusion and modern legal domination, aiming to make post-abyssal legal utopias a reality.