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Courts and Comparative Law

Courts and Comparative Law

  • Author:
  • Publisher: Oxford University Press
  • ISBN: 9780198846918
  • Published In: July 2019
  • Format: Paperback , 768 pages
  • Jurisdiction: U.K. ? Disclaimer:
    Countri(es) stated herein are used as reference only

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    While the role of comparative law in the courts was previously only an exception, foreign sources are now increasingly becoming a source of law in regular use in supreme and constitutional courts. There is considerable variation between the practices of courts and the role of comparative law, and methods remain controversial. In the US, the issue has been one of intense public debate and it is still one of the major dividing issues in the discussion about the role of the courts.

    Contributing to the existing discussion of the use of comparative law in the courts, this book provides an inclusive, coherent, and practical analysis of the relevant law and jurisprudence in comparative law in the courts. It examines the consequences for court procedures and the form of judgments, as well as how foreign sources are drawn upon in private international law, European law, administrative law, and constitutional law as well as before general courts.

    The book also includes case studies of comparative law used in particular spheres of the law, such as tort law and consumer law. Written by practising judges and lawyers as well as leading academics, this book serves as a central reference point concerning the role of comparative law before the courts.

  • 1. Introduction - Courts and Comparative Law: In Search of Common Language for Open Legal Systems

    PART I: CONFLICTS AND COMPARISONS
    2. Is it Legitimate and Beneficial for Judges to Use Comparative Law?
    3. Comparative Law and the Courts: What is Comparative and What is Law?
    4. Foreign Law before the French Courts: The Conflicts of Law Perspective
    5. Foreign Law in National Courts: A Common Law Perspective
    6. Foreign Law in International Legal Practice

    PART II: COMPARATIVE LAW WITHIN A EUROPEAN AND INTERNATIONAL LAW CONTEXT
    7. Common Ground: A Starting Point or Destination for Comparative Law Analysis by the European Court of Human Rights?
    8. Comparative Law and the Court of Justice of the European Union: Interlocking Legal Orders Revisted
    9. National Judges and Strasbourg Case Law: Comparative Reflections About the Italian Experience
    10. Comparative Law and the European Union Civil Service Tribunal
    11. Networks, Dialogue, or One-Way Traffic? An Empirical Analysis of Cross-Citations Between Ten of Europe's Highest Courts
    12. Comparative Law and the Method of Law: Ascertainment of the International Court of Justice

    PART III: COMPARATIVE LAW BEFORE ADMINISTRATIVE COURTS
    13. Comparative Law as an Essential Feature of French Public Law
    14. Comparative Legal Methodology of the Conseil d'Etat: Towards an Innovative Judicial Process?
    15. The Use of Comparative Law Before the French Administrative Law Courts: Or the Triumph of Castles Over Pyramids
    16. The Use of Comparative Law Before the Italian Public Law Courts
    17. Cooperation of Constitutional Courts in Europe - The Openness of the German Constitution to International, European, and Comparative Constitutional Law
    18. Judicial Dialogue in a Multilevel Constitutional Network: The Role of the Portuguese Constitutional Court
    19. Judges and Professors: the Influence of Foreign Scholarship on Constitutional Courts' Decisions
    20. South Africa: Teaching an 'Old Dog' New Tricks? An Empirical Study of the Use of Foreign Precedents by the South African Constitutional Court (1995-2010)
    21. Enhancing Constitutional Self-Understanding through Comparative Law: An Empirical Study of the Use of Foreign Case Law by the Supreme Court of Canada (1982-2013)
    22. Comparative Law Before the Supreme Courts of the UK and the Netherlands: An Empirical and Comparative Analysis
    23. Constructing the 'Foreign': American Law's Relationship to Non-Domestic Sources
    24. The Use of Comparative Law Before the French Private Law Courts
    25. The Use of Comparative Law Before the French Cour de Cassation : The View From Academia
    26. Italian Courts and Comparative Law
    27. The Controversial Status of International and Comparative Law in the United States
    28. Foreign Law and the Modern Ius Gentium
    29. Comparative Law Before the Spanish Private Law Courts in the XXI Century
    30. Comparative Legal Reasoning and the Courts: A View from the Americas
    31. Comparative Law in the German Courts
    32. Comparative Law in the Syariah Courts: A Case Study of Singapore, Malaysia, and Brunei

    PART VI: USING COMPARATIVE LAW: CASE STUDIES
    33. Liaison Magistrates: Their Role in International Judicial Cooperation and Comparative Law
    34. Comparative Law in Consumer Litigation
    35. The Use of Comparative Law by Courts in Birth-Related Tort Cases
    36. The Use of Comparative Law in A & Others v National Blood Authority
    37. What Europeans Can Learn from an Untold Story of Transjudicial Communication: The Swiss-Turkish Experience
    38. DCFR in the Courts: The Remaking of Comparative Law

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