Abstract This Article applies emerging literature on resilience in complex systems to institutional change in property rights systems. Complex systems theory provides an alternative to economic models that adopt assumptions of linearity in property rights transitions—where inputs such as rising resource values induce proportionate outputs in the formation of private property rights. Based on a case study of catastrophic disaster, the Article concludes that institutional change in a complex property system does not involve proportionate or predictable responses to sudden shocks in the external environment. The stochasticity of institutional change arises from acts of adaptive self-organization across multiple scales of proprietary governance. The “added value” of systems theory is a set of conceptual tools—such as scale, stochasticity, and self-organization—which help to explain resilience and change in property systems affected by sudden environmental shocks.
{"title":"Complex Systems of Property: Change and Resilience After a Catastrophic Disaster","authors":"Daniel Fitzpatrick","doi":"10.1093/ajcl/avad007","DOIUrl":"https://doi.org/10.1093/ajcl/avad007","url":null,"abstract":"Abstract This Article applies emerging literature on resilience in complex systems to institutional change in property rights systems. Complex systems theory provides an alternative to economic models that adopt assumptions of linearity in property rights transitions—where inputs such as rising resource values induce proportionate outputs in the formation of private property rights. Based on a case study of catastrophic disaster, the Article concludes that institutional change in a complex property system does not involve proportionate or predictable responses to sudden shocks in the external environment. The stochasticity of institutional change arises from acts of adaptive self-organization across multiple scales of proprietary governance. The “added value” of systems theory is a set of conceptual tools—such as scale, stochasticity, and self-organization—which help to explain resilience and change in property systems affected by sudden environmental shocks.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135469506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Using artwork and other valuables as a high-stakes case study, the Article discusses the law governing acquisitive prescription of movable property in Louisiana, Germany, and Russia. Rather than merely depicting what the law is from the perspective of a legal system’s respective silo, the Article develops a unique screen of test questions that have been intensely discussed by the courts and literature of the three sample jurisdictions when confronting prescription cases. What barriers, if any, does a jurisdiction erect with regard to the operations of prescription law? How are evidentiary burdens allocated with regard to good faith? Does the jurisdiction recognize tolling doctrines that do not reside in legislated law? What is the relationship between prescription and unjust enrichment? Controversies over art work and other high-value movables have inserted a powerful dose of drama into the discussion of these topics, which would have otherwise not received much attention in the public space. The Article concludes with the diagnosis that prescription law, one of property law’s core staples, is a fertile area of scholarly research with a particularly rich comparative yield. Louisiana, Germany and Russia differ widely as to the designs and operations of their prescription laws, which ultimately reflects distinct policies with regard to balancing the protection of ownership with the transformative effects of possession over time.
{"title":"Acquisitive Prescription of Artwork and Other High-Value Movables: A Comparative Case Study of Litigation and Legislation in Louisiana, Germany, and Russia","authors":"Markus G Puder, Anton D Rudokvas","doi":"10.1093/ajcl/avad020","DOIUrl":"https://doi.org/10.1093/ajcl/avad020","url":null,"abstract":"Abstract Using artwork and other valuables as a high-stakes case study, the Article discusses the law governing acquisitive prescription of movable property in Louisiana, Germany, and Russia. Rather than merely depicting what the law is from the perspective of a legal system’s respective silo, the Article develops a unique screen of test questions that have been intensely discussed by the courts and literature of the three sample jurisdictions when confronting prescription cases. What barriers, if any, does a jurisdiction erect with regard to the operations of prescription law? How are evidentiary burdens allocated with regard to good faith? Does the jurisdiction recognize tolling doctrines that do not reside in legislated law? What is the relationship between prescription and unjust enrichment? Controversies over art work and other high-value movables have inserted a powerful dose of drama into the discussion of these topics, which would have otherwise not received much attention in the public space. The Article concludes with the diagnosis that prescription law, one of property law’s core staples, is a fertile area of scholarly research with a particularly rich comparative yield. Louisiana, Germany and Russia differ widely as to the designs and operations of their prescription laws, which ultimately reflects distinct policies with regard to balancing the protection of ownership with the transformative effects of possession over time.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135469505","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The modern movement to abolish the death penalty in the United States stresses that this punishment cannot be applied fairly and effectively. The movement does not emphasize that killing prisoners is inhumane per se. Its focus is almost exclusively on administrative, procedural, and utilitarian issues, such as recurrent exonerations of innocents, incorrigible racial discrimination, endemic arbitrariness, lack of deterrent value, and spiraling financial costs. By comparison, modern European law recognizes any execution as an inherent violation of human rights rooted in dignity. This humanistic approach is often assumed to be “European” in nature and foreign to America, where distinct sensibilities lead people to concentrate on practical problems surrounding executions. This Article demonstrates that, in reality, the significant transatlantic divergence on abolitionism is a relatively recent development. By the late eighteenth century, abolitionists in Europe and America recurrently denounced the inhumanity of executions in language foreshadowing modern human rights norms. Drawing on sources overlooked by scholars, including the views of past American and French abolitionists, the Article shows that reformers previously converged in employing a polyvalent rhetoric blending humanistic and practical objections to executions. It was not until the 1970s and 1980s that a major divergence materialized. As America faced an increasingly punitive social climate leading to the death penalty’s resurgence and the rise of mass incarceration, abolitionists largely abandoned humanistic claims in favor of practical ones. Meanwhile, the opposite generally occurred as abolitionism triumphed in Europe. These findings call into question the notion that framing the death penalty as a human rights abuse marks recent shifts in Western Europe or international law. While human rights have indeed become the official basis for abolition in modern Europe, past generations of European and U.S. abolitionists defended similar moral and political convictions. These humanistic norms reflect a long-term evolution traceable to the Renaissance and Enlightenment. But for diverse social transformations, America may have kept converging with Europe in gradually adopting humanistic norms of punishment.
{"title":"Death Penalty Abolitionism from the Enlightenment to Modernity","authors":"Mugambi Jouet","doi":"10.1093/ajcl/avad011","DOIUrl":"https://doi.org/10.1093/ajcl/avad011","url":null,"abstract":"Abstract The modern movement to abolish the death penalty in the United States stresses that this punishment cannot be applied fairly and effectively. The movement does not emphasize that killing prisoners is inhumane per se. Its focus is almost exclusively on administrative, procedural, and utilitarian issues, such as recurrent exonerations of innocents, incorrigible racial discrimination, endemic arbitrariness, lack of deterrent value, and spiraling financial costs. By comparison, modern European law recognizes any execution as an inherent violation of human rights rooted in dignity. This humanistic approach is often assumed to be “European” in nature and foreign to America, where distinct sensibilities lead people to concentrate on practical problems surrounding executions. This Article demonstrates that, in reality, the significant transatlantic divergence on abolitionism is a relatively recent development. By the late eighteenth century, abolitionists in Europe and America recurrently denounced the inhumanity of executions in language foreshadowing modern human rights norms. Drawing on sources overlooked by scholars, including the views of past American and French abolitionists, the Article shows that reformers previously converged in employing a polyvalent rhetoric blending humanistic and practical objections to executions. It was not until the 1970s and 1980s that a major divergence materialized. As America faced an increasingly punitive social climate leading to the death penalty’s resurgence and the rise of mass incarceration, abolitionists largely abandoned humanistic claims in favor of practical ones. Meanwhile, the opposite generally occurred as abolitionism triumphed in Europe. These findings call into question the notion that framing the death penalty as a human rights abuse marks recent shifts in Western Europe or international law. While human rights have indeed become the official basis for abolition in modern Europe, past generations of European and U.S. abolitionists defended similar moral and political convictions. These humanistic norms reflect a long-term evolution traceable to the Renaissance and Enlightenment. But for diverse social transformations, America may have kept converging with Europe in gradually adopting humanistic norms of punishment.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135469515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Anu Bradford, The Brussels Effect: How the European Union Rules the World","authors":"Peter L. Lindseth","doi":"10.1093/ajcl/avad001","DOIUrl":"https://doi.org/10.1093/ajcl/avad001","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44139214","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article examines the right to be acknowledged as the first inventor of a new technology in patent law. Technological inventions usually result from cumulative research and development, and several people sometimes arrive at the same invention almost simultaneously. However, only one person is usually considered to be the “inventor,” and receives all the credit and honor. This Article focuses on the legal systems of Germany and the United States, comparing how they conceptualize the right to be seen as inventor. These systems have developed in substantially different philosophical and cultural climates: while the German legal system has been deeply influenced by Kantian and Hegelian thought, the American legal system has been inspired more strongly by liberal and utilitarian ideas. These two schools of philosophical thought have different perspectives on the relationship between personal identity and work; while the German tradition emphasizes the deeply personal relation between individuals and their work, the Anglo-Saxon approach is, in general, more instrumentalist and utilitarian with regard to work. One way in which these differences express themselves is the different ways in which the right to be acknowledged as the first inventor is understood and regulated. The right to be acknowledged as the first inventor is deeply connected with one’s identity as a professional, whether an engineer, technician, or scientist. On the other hand, this right does not necessarily have pecuniary significance. Hence, the protection of the right to be considered as the first inventor allows a glimpse into the different visions of identity and work found in these legal systems. This Article examines to what extent German and American legal systems recognize and protect the right to be perceived as the first inventor. It demonstrates that the two legal systems differ profoundly in the ways they perceive and protect the right to be considered as the first inventor. True to its visions of professional dignity, German law carefully protects this right, independently from any pecuniary interests. In contrast, American law grants a remarkably weak protection to the right to be considered as the first inventor, focusing primarily on its monetary aspects. Hence, one can here discover different visions of the role of individuals in society, and specifically of the role of individuals as creators and not just consumers. What is at stake here is whether questions of honor, dignity, and symbolic property, above and beyond material benefits, are recognized as playing a role in the economic system.
{"title":"The Importance of Being First: Economic and Non-economic Dimensions of Inventorship in American and German Law","authors":"Katya Assaf, Lisa Herzog","doi":"10.1093/ajcl/avac043","DOIUrl":"https://doi.org/10.1093/ajcl/avac043","url":null,"abstract":"This Article examines the right to be acknowledged as the first inventor of a new technology in patent law. Technological inventions usually result from cumulative research and development, and several people sometimes arrive at the same invention almost simultaneously. However, only one person is usually considered to be the “inventor,” and receives all the credit and honor. This Article focuses on the legal systems of Germany and the United States, comparing how they conceptualize the right to be seen as inventor. These systems have developed in substantially different philosophical and cultural climates: while the German legal system has been deeply influenced by Kantian and Hegelian thought, the American legal system has been inspired more strongly by liberal and utilitarian ideas. These two schools of philosophical thought have different perspectives on the relationship between personal identity and work; while the German tradition emphasizes the deeply personal relation between individuals and their work, the Anglo-Saxon approach is, in general, more instrumentalist and utilitarian with regard to work. One way in which these differences express themselves is the different ways in which the right to be acknowledged as the first inventor is understood and regulated. The right to be acknowledged as the first inventor is deeply connected with one’s identity as a professional, whether an engineer, technician, or scientist. On the other hand, this right does not necessarily have pecuniary significance. Hence, the protection of the right to be considered as the first inventor allows a glimpse into the different visions of identity and work found in these legal systems. This Article examines to what extent German and American legal systems recognize and protect the right to be perceived as the first inventor. It demonstrates that the two legal systems differ profoundly in the ways they perceive and protect the right to be considered as the first inventor. True to its visions of professional dignity, German law carefully protects this right, independently from any pecuniary interests. In contrast, American law grants a remarkably weak protection to the right to be considered as the first inventor, focusing primarily on its monetary aspects. Hence, one can here discover different visions of the role of individuals in society, and specifically of the role of individuals as creators and not just consumers. What is at stake here is whether questions of honor, dignity, and symbolic property, above and beyond material benefits, are recognized as playing a role in the economic system.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"65 8","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138518498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Comparative Constitution MakingThe Law and Legitimacy of Imposed Constitutions","authors":"Amal Sethi","doi":"10.1093/ajcl/avac044","DOIUrl":"https://doi.org/10.1093/ajcl/avac044","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44407520","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Ḥanafī Jurisprudence","authors":"Andrew F. March","doi":"10.1093/ajcl/avac045","DOIUrl":"https://doi.org/10.1093/ajcl/avac045","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2023-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44183037","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In an act of minor comparativism, this Article studies feminist writings on unmarried cohabitation from Canada’s jurisdictions of the common law and civil law. It examines activist texts and legal scholarship for and against regulating cohabitants. Reading the English-language literature from the common law provinces and the French-language literature from Quebec, it reports differences in substance, in emphasis, and in what is common sense. Differing approaches to ideas of freedom, autonomy, and choice run throughout. The Quebec literature shows disagreement between activists and scholars. Over time, that literature has moved towards the view in the common law literature. Lessons for comparatists relate to varieties of difference, the definition of legal sources, the asymmetrical role that legal traditions play in majority and minority contexts, and the limits of law in explaining differences. Given the unreliability of initial observations of difference and sameness, comparatists should read a broad range of sources with care and humility.
{"title":"Differences in a Minor Archive: Feminist Activists and Scholars on Cohabitation","authors":"Robert Leckey","doi":"10.1093/ajcl/avac039","DOIUrl":"https://doi.org/10.1093/ajcl/avac039","url":null,"abstract":"In an act of minor comparativism, this Article studies feminist writings on unmarried cohabitation from Canada’s jurisdictions of the common law and civil law. It examines activist texts and legal scholarship for and against regulating cohabitants. Reading the English-language literature from the common law provinces and the French-language literature from Quebec, it reports differences in substance, in emphasis, and in what is common sense. Differing approaches to ideas of freedom, autonomy, and choice run throughout. The Quebec literature shows disagreement between activists and scholars. Over time, that literature has moved towards the view in the common law literature. Lessons for comparatists relate to varieties of difference, the definition of legal sources, the asymmetrical role that legal traditions play in majority and minority contexts, and the limits of law in explaining differences. Given the unreliability of initial observations of difference and sameness, comparatists should read a broad range of sources with care and humility.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" 33","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138518510","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Described by the U.S. Attorney General as “kleptocracy at its worst,” 1MDB, a Malaysian state-owned company, was a vehicle for theft of billions by the former prime minister for nine years. Malaysian corporate law is largely aligned with international standards, raising questions as to why it failed to effectively safeguard against the expropriation of corporate property. The Article investigates empirical evidence of the strength and implementation of Malaysian corporate law that ostensibly protects shareholders from expropriation. It examines the translation of global norms into local practice and highlights the contextual influences that have impeded effective enforcement. The analysis draws on broader theoretical approaches to illuminate the evolution of Malaysian shareholder protection and explain the gap between law in the books and law in practice. While Malaysian corporate law has been modeled on benchmarks of international standards, its corporate ownership structures, political economy, and form of political governance have developed in a distinctly different manner from institutions in Western developed countries. This research explores the limitations of prescribing formal law based on global standards, highlighting the need to consider the implications of political economy. Broader implications for the discourse on legal transplants and global norms for corporate law are considered, along with potential reforms.
{"title":"Corporate Law and Political Economy in a Kleptocracy","authors":"Vivien Chen","doi":"10.1093/ajcl/avac041","DOIUrl":"https://doi.org/10.1093/ajcl/avac041","url":null,"abstract":"Described by the U.S. Attorney General as “kleptocracy at its worst,” 1MDB, a Malaysian state-owned company, was a vehicle for theft of billions by the former prime minister for nine years. Malaysian corporate law is largely aligned with international standards, raising questions as to why it failed to effectively safeguard against the expropriation of corporate property. The Article investigates empirical evidence of the strength and implementation of Malaysian corporate law that ostensibly protects shareholders from expropriation. It examines the translation of global norms into local practice and highlights the contextual influences that have impeded effective enforcement. The analysis draws on broader theoretical approaches to illuminate the evolution of Malaysian shareholder protection and explain the gap between law in the books and law in practice. While Malaysian corporate law has been modeled on benchmarks of international standards, its corporate ownership structures, political economy, and form of political governance have developed in a distinctly different manner from institutions in Western developed countries. This research explores the limitations of prescribing formal law based on global standards, highlighting the need to consider the implications of political economy. Broader implications for the discourse on legal transplants and global norms for corporate law are considered, along with potential reforms.","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":"26 32","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138518497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Courts Without Cases: The Law and Politics of Advisory OpinionsSeeking the Court’s Advice: The Politics of the Canadian Reference Power","authors":"M. Topf","doi":"10.1093/ajcl/avac035","DOIUrl":"https://doi.org/10.1093/ajcl/avac035","url":null,"abstract":"","PeriodicalId":51579,"journal":{"name":"American Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":1.5,"publicationDate":"2022-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46364197","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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