Roderick A. Macdonald
This article discusses the process of empirical research on access to justice, explaining the procedure from data collection to analysis. Research into access to justice finds ways to render civil justice to citizens equitably. Reliable, non-anecdotal data is a prerequisite for useful empirical research into access to justice. Three international initiatives illustrate the reflection of access to justice in research projects. They are, the World Bank's Justice for the Poor Program, UNDP Commission on Legal Empowerment of the Poor, and the Tilburg Microjustice Initiative. The most comprehensive empirical projects on access to justice are those sponsored at the national or sub-national level. Non-governmental drivers of broad-based data collection are other legal actors. This article discusses examples of data collection and evaluation in countries where research has generated data on civil justice. Finally, this article discusses barriers to access to justice, which cause exclusion.
Common themes and common divides have come to organize citizenship discourse both within and beyond legal studies. Broadly speaking, questions about citizenship can be divided into three categories: those that concern the substance of citizenship (what citizenship is), those that concern its domain or location (where citizenship takes place), and those that concern the subjects of citizenship (who is a citizen). Each of these questions, in turn, has received a range of conventionally acceptable answers which have served to structure the citizenship debates. This article sketches out some of the main responses conventionally offered to each of these questions. It contends that citizenship is a flexible enough concept to take on new meanings, even some that appear sharply in tension with earlier understandings. The idea of citizenship contains enough universalist normative content that it can plausibly be used as a resource for challenging narrower and more exclusive understandings. In the end, however, arguments about citizenship are less about the scope and meaning of the term itself than they are about the value and legitimacy of the political practices and ideals the word is used to represent.
In civil law courts, early modern civil procedure was based on the Roman-canonical model of proceedings originally developed in late medieval ecclesiastical courts and by academic scholarship. Its main features were the principle of party disposition and its corollary, the adversarial principle. These features also governed to a large extent English common law proceedings in civil litigation. The new secular and ecclesiastical social elites emerging in urban environments from the late eleventh century onwards rejected traditional forms of procedures because they perceived them as arbitrary. Early modern political developments tended to reorganize the courts’ systems in a polity under the authority of the sovereign, but in most territories, a patchwork of courts remained in place. The fundamental structure of civil proceedings remained by and large in place in the system of national courts established from the late eighteenth and early nineteenth century onwards.
Carrie J. Menkel-Meadow and Bryant G. Garth
Courts play a central role in legal and political processes in many countries in the common law world. Legal actors have a stake in making sure that legal processes and procedures are perceived as legitimate, both by the general population and professionals. Civil procedure, in both common law and civilian legal systems, has been historically known for its complexity. This article presents a body of empirical research about courts and procedural rules, and their role in different societies. It also analyzes research and states how it has been used in policy debates and reforms. In addition, it discusses the question of the demand and supply for empirical research about rules of procedure and courts, and explores the difficulty of carrying out empirical research that goes beyond a focus on the institutional needs of the courts themselves and the reformers interested in their own court-reform agendas.
This article charts and analyzes the shifts in civil processes during the twentieth century by examining sequences of reformation and critique during which calls have been made for more, for less, and for different forms of process. It begins by contrasting different modes of process and by exploring the increasingly diverse paradigms of conflicts, which have prompted choices about what kind of process to provide for which kinds of disputes. Through examples from the United States, England, and Wales, the article examines aspirations for and the critiques of civil processes, which are, in turn, embedded in debates about substantive liability rules, the role of and the market for lawyers, empirical effects, and political conceptions of the utility and propriety of regulation.
Liliana Obregón Tarazona
From the 16th century to the early 19th century, the concepts of civilized/uncivilized, which categorized and stratified peoples, nations, or States, were keys to the language of informal European imperialism. In the 16th and 17th centuries, the holistic Christian vision of law and morality was the entitlement for European expansion as Native Americans entered into the universe of European sovereignty. In the 18th century, Enlightenment thought brought forth the concept of the ‘human’ and its other, which allowed for an alternative conceptual pair to the previous Christian/non-Christian universal view. In the late 19th century, the language of civilization transitioned to formal imperialism sustained by international law. This chapter concludes that international law surged in the 19th century as a discipline constituted by the tension in defining its inner and outer limits between the civilized and the uncivilized.
This essay will first examine the attempts to categorize and label procedural systems, an impulse that many comparatists cannot, but should, resist because the very exercise of creating categories invites undue generalizations. The focus will then shift to procedural harmonization, a term that encompasses a number of topics of increasing importance to proceduralists. This section forms the centrepiece of the essay because it is here that most opportunities to benefit from comparative scholarship present themselves—and are still being missed. After illustrating the dynamics and results of regional, particularly European, and supra-regional harmonization initiatives, this section identifies trends towards harmonization through private rule making and examines principles that determine the scope of, and limits to, procedural harmonization. The final section addresses the growing concern about access to justice, specifically cost considerations and claim aggregation techniques, which prompt the somewhat related questions of whether and to what extent one legal system can borrow procedural rules from another one.
Martin Gelter and Geneviève Helleringer
This chapter surveys fiduciary principles in Western European civil law jurisdictions. Focusing on France and Germany, it shows that functional equivalents to fiduciary duties have developed on the Continent, although they do not always carry exactly the same connotations as their common law counterparts. The common law developed fiduciary duties as a distinct category largely for two reasons. First, the common law distinguished between law and equity, with fiduciary law developing within equity. By contrast, contract law required consideration, which meant that fiduciary principles for gratuitous actions necessarily arose outside of contract law. Civil law generally did not develop this particular categorization. Consequently, the lines between fiduciary and contract law remained blurred. Second, common law bargaining for contracts emphasizes parties’ autonomy, while the civil law was more hospitable to an implied and inchoate loyalty obligation. The chapter surveys the civil law of agency, equivalents of trust, as well as corporate and financial law.
This chapter focuses on fiduciary principles that operate in the Roman law. It first provides an overview of Roman legal institutions and their key features, asking whether an institution involves a fiduciary relationship or otherwise shows fiduciary principles at work. Key institutions in the law of persons or status (patria potestas, tutela or tutorship, cura), contract (fiducia, mandatum), property (“bonitary owner,” dos or dowry, usufruct, peculium), and succession (fideicommissum, foundations or trusts for purposes) which might be thought to involve a fiduciary element are considered. The chapter proceeds by discussing principles of the modern law of trusts or fiduciary law and the extent to which they appear in Roman law, with emphasis on equitable principles and good faith, ownership, fiduciary administration of property, and conflict of interest. Finally, it examines remedies developed by the courts of equity to protect the beneficiary’s interests.
Francesco Contini and Antonio Cordella
This chapter analyses how technological systems shape the actions and the outcomes of judicial proceedings, through discussing the regulative regimes underpinning technical and legal deployment. The negotiation, mediation, or conflict between law and technology offer a new dimension to account for the digital transformation shaping the institutional settings and procedural frameworks of judicial institutions. These changes are not just instances of applied law, but are also the result of the transformation of law evolving into technological deployments. The chapter concludes that technological innovation in the judiciary unfolds in techno-legal assemblages. Technologies shape judicial institutions as they translate formal rules and existing practices into the code of technology. At the same time, technologies call for new regulations, which make legally compliant the use of given technological components within judicial proceedings. Such new techno-legal assemblages generate new institutional settings and profound changes in the administration of civil justice.
Among the features of emerging decision-making structures, the participation of non-governmental organisations (NGOs) may be the least amenable to traditional models of world politics. For political leaders and scholars alike, NGOs' place and legitimacy as independent global actors remains contested. International environmental law making has presented a useful vehicle for the study of NGOs and civil society in this new global context. Along with human rights, international environmental law stands at the forefront of international law making. A relatively new area of intensive international regulation, its institutional features are thus only now being mapped out, and can reflect the evolving role of NGOs in a way that more entrenched regimes cannot. This article examines major theoretical approaches to NGO participation in international law, both generally and with specific application to international environmental law. It also considers their place in liberal theory, focusing on NGOs as stakeholders acting through international institutions and as freelancers acting through the marketplace.
The impact of peace movements on the development of international law over the course of the 19th and early 20th centuries was significant, especially in advancing norms of equality of status, and in advocating for and legitimizing international organizations. This chapter relates the impact of peace movements and other civil society actors on the development of international law beginning in the early 19th century and culminating with the creation of the United Nations in 1945. During this period, civil society actors, including peace movements, had considerable success in influencing international legal norms, the development of institutions, and the negotiation of treaties regarding arbitration, humanitarianism, and arms control. The discussion focuses on ‘Western’, and especially Anglo-American, peace activists from the Global North. Legal norms promoted by these actors included constraints on States’ rights to wage war and the requirement that States attempt to resolve conflict peacefully before using force.
Robin Fretwell Wilson
This chapter examines the challenges that need to be addressed before the promise of informed consent can be realized. It begins by tracing the evolution of physicians’ duty to secure a patient’s informed consent before turning to two seminal cases that established what physicians must disclose to patients to satisfy the duty of informed consent: Culbertson v. Mernitz and Canterbury v. Spence. In particular, it considers two competing standards for determining the scope of disclosure: the professional or “reasonable physician” standard and the patient-centered or “reasonable patient” standard. It also explores the application of duties to secure informed consent to medical research, along with criticisms against the duty to secure informed consent. Finally, it describes the efforts of state legislatures to standardize disclosure to patients so as to reduce the burden on and legal risk to physicians without compromising the right of patients to receive needed information.
Roman law has been a system of practice and field of academic study for some 2,400 years. Today, the field enjoys unprecedented diversity in terms of linguistic, disciplinary, and national context. However, the contours of contemporary study are the product of complex and imbricated historical factors: the non-codification by the Romans of the classical period of their own public law; solutions taken in the classical period and later to resolve conflicts among sources of law of very different antiquity; the codification in late antiquity of academic jurisprudence regarding private law; the on-going prestige of Roman civil law in medieval and late medieval Europe, which made it a resource for analogical argumentation in both public and international law; and much else besides. This chapter evaluates the contribution made by some of these factors to Roman legal history as a contemporary endeavour, with an eye to its future.
Daniel L. Wallach
This chapter examines the growing and transformative body of law governing sports betting, with a special emphasis on the Interstate Wire Act of 1961 and the Professional and Amateur Sports Protection Act of 1992, the two principal federal laws addressing sports betting. The provisions of PASPA, in particular, will serve as a launch point to a discussion of the true driver behind current efforts to legalize sports betting in the United States: the recent litigation pitting the State of New Jersey against the four major U.S. professional sports leagues and the National Collegiate Athletic Association. This chapter features an in-depth examination of the New Jersey case and explains how court rulings have opened a variety of pathways for states to legalize sports betting and, at a minimum, have compressed the time frame for federal action to repeal or amend PASPA.
This chapter begins with a brief introductory note on the role of legal history in ancient Roman law, and the legal scholarship of medieval glossators and commentators. It then turns to the dominant schools of continental legal scholarship in the seventeenth and eighteenth centuries, the ‘Neo-Bartolists’ and the usus modernus pandectarum. It considers the rise of the Historical School in Germany and the corresponding movements elsewhere in continental Europe. Methodologically, the representatives of the Historical School were the first professional legal historians in the modern sense of the term. Finally, the chapter retells the story of the rise of European legal history in the post-war period, and the recent trends towards a creation of global legal histories. It shows that legal history’s turns have in many ways followed from not only legal scholarship in general, but also from developments in historical science and global politics.
Marcos A. Orellana
This article analyses the roles played by multinational corporations and civil society in the development of trade law and its ongoing evolution. It examines the notion of civil society and the changing of this notion in the context of globalization and global structures of governance. It also describes some of the NGOs actively working on trade issues. It explores the challenges of legitimacy and governance in international organizations, examining developments in human rights law and international environmental law regarding access to information and transparency. Finally, it examines developments at the WTO regarding its relations with civil society and looks at issues concerning the institutional operations of the organization, as well as transparency and participation in negotiations, capacity-building, and dispute settlement.