American Civil Law Research Articles

El paradigma liberal de la propiedad y la codificacion decimononica en la Republica Argentina

The liberal paradigm of ownership was welcomed by the Argentine Civil Code of 1871. This paper first offers two conceptualizations that assist in setting its scope: ownership paradigms and American civil law jurisdictions. This paper then addresses the first generation of civil codes in those American jurisdictions, elaborating on the time of adoption, content, and motivation. The account continues by tracing the codification of the liberal paradigm of ownership in those nineteenth-century normative bodies. Further, this paper offers an illustration of the above-mentioned circulation of ideas, describing the experience of reception of the liberal paradigm within the articles and notes to the text drafted by Dalmacio Vélez Sarsfield and its pollination into the civil codes of other jurisdictions. It should be noted that ownership is subject to changes that respond to the mentality of a given society, according to time and space.

Lost in Translation?

In the 1960s, law graduates from Latin American and other civil law countries started flocking to American law schools. Comparative law scholars have discussed the wide differences between American and civil law systems of legal education and predicted trials and tribulations for students going to the United States. This article argues that such students do not experience the predicted shock mainly because American law schools have undergone major changes themselves and legal education in civil law countries has also changed. These changes are part of globalization. The article also speculates about other possible consequences of the globalization of legal education.

Comparative Aspects of Piercing the Corporate Veil in the United States and Latin America

This article examines the history and uses of the corporate veil piercing doctrine in the United States, identifying its main elements and highlighting the different theoretical components of its application by courts in the United States in order to present an analytical framework for comparative law purposes. This study then analyzes how the veil piercing theory has been received in Latin American civil law jurisdictions, and undertakes an exhaustive analysis of the points of convergence and divergence between both systems. Finally, the article offers a discrete doctrinal discussion on the philosophical and theoretical grounds that justify an eventual ex- pansion of the veil piercing theory in Latin America, and with that aim draws extensively from the legal experience of the United States, highlighting potential lines of development for the future.

Levantamiento Del Velo Corporativo Latinoamericano: Aspectos Comparados Con El Derecho Estadounidense (Piercing the Corporate Veil in Latin America: Comparative Aspects with U.S. Law)

The article examines the history and uses of the piercing the corporate veil doctrine in the United States. It identifies the doctrine’s main elements, and highlights the different theoretical components of its application by U.S. courts. The study then analyzes how the veil piercing theory has been received in Latin American civil law jurisdictions. The article does not purport to provide an exhaustive review of the veil piercing doctrine in the United States, but only to identify its main expressions in order to present an analytical framework for comparative law purposes.

El Rol Evolutivo Del Notario Publico En Latinoamerica (The Evolving Role of the Latin American Notary Public)

This article outlines the historical role that notary publics have fulfilled in Latin American civil law jurisdictions, and also highlights the current challenges that the electronic era and modern commercial transactions has brought over that traditional profession.

Experiments in Financial Democracy: Corporate Governance and Financial Development in Brazil, 1882 – 1950

Experiments in Financial Democracy: Corporate Governance and Financial Development in Brazil, 1882 – 1950

Divorce in an Islamic American Context: Muslim Lebanese-American Women Navigating Religious and Civil Legal Systems

AbstractThis essay discusses divorce and Islamic law in the United States. Specifically, it examines the Shi‘i Muslim Lebanese-American community in Detroit, Michigan, and the way different actors such as women, local imams, judges, and lawyers are working to bridge the differences that exist between secular and religious laws in issues pertaining to divorce and the concomitant complexities involved. In particular, the essay highlights the contingent character of Islam, and the ways in which Muslim-Americans are working to navigate the nuances and find innovative legal solutions for marriage and divorce that take into consideration American civil law, Islamic law, the ethnic Lebanese subculture of the Lebanese Shi‘i community as well as the wider American culture.

The Law and Hiring Practices in Faith-Based Schools

A key concern of educational leaders in faith-based schools is their ability to hire faculty members who support institutional missions. Insofar as the American legal system protects the rights of leaders in faith-based schools to hire those who share in school goals, this article is divided into three substantive sections. The first section provides a brief historical-legal overview of faith-based schools in the United States. The next part highlights federal anti-discrimination statutes along with illustrations of litigation interpreting and applying these laws in disputes impacting on hiring practices in faith-based schools. The final substantive section offers five recommendations for educational leaders in faith-based schools who must walk the fine line between complying with their Church teachings and American civil law in making hiring decisions.

Square Pegs in Round Holes: Toward a Better Model of Parish Civil Law Structures

SQUARE PEGS IN ROUND HOLES: TOWARD A BETTER MODEL OF PARISH CIVIL LAW STRUCTURES Phillip J. Brown*1 I. Introduction It is well known among canonists that the Vatican Congregation for the Council sent a letter to the bishops of the United States in 1911 regarding property ownership and church structures in civil law. The bishops were advised that the Congregation’s view of the preferred method for holding and administering church property in the U.S. was the Parish Corporation model, especially as available in the State of NewYork. The bishops were asked to take steps to employ that method in dioceses where it was available. They were also encouraged to use their influence to secure legislation making the model available in jurisdictions where it did not yet exist. The bishops were directed, in particular, to completely abandon ownership of church property in fee simple, and to utilize the so-called “corporation sole” only where the preferred Parish Corporation was not available, or at least only until the change to Parish Corporation could be made.2 It is not as well known that the American bishops were first urged “to lobby state legislatures to provide forms of incorporation consonant with Catholic polity to insure the security of ecclesiastical goods” by the Fourth Provincial Council of Baltimore in 1840.3 Nor, perhaps, that the Holy See had been prodding American bishops to advocate for laws that would allow incorporation compatible with Catholic polity in the U.S. long before that.4 Vatican concerns had arisen, no doubt, at least in part from the Church’s recent experience with revolutionary changes in political and legal systems in Europe, especially in France, and their effects on the ownership, administration, and control of church property. The The Jurist 69 (2009) 261–310 261 * School of Canon Law, Catholic University of America 1 This article is based on a presentation at the April 2008 School of Canon Law Spring Seminar Getting Civil Law Right: Canonical Criteria for Parish Civil Structures. 2 Sacred Congregation for the Council, letter, July 29, 1911, in CLD 2: 444–445 (emphasis in the original), cited in: John Beal, “It’s Déjà Vu All over Again: Lay Trusteeism Rides Again,” The Jurist 68 (2008) 547, n. 139. 3 Fourth Provincial Council of Baltimore, decree 56 in Decreta Conciliorum, 23–24, cited in Beal, 537 4 Beal, 527. 262 the jurist Church and church institutions suffered serious depredations of their property interests during the French Revolution, which heightened anxieties extending back to the period of the Protestant Reformation and beyond . Indeed, concerns over how best to protect church property interests before the civil authority have been present throughout the Church’s long history. However, the Vatican was being especially vigilant regarding church property rights during the nineteenth century because of the tremendous changes taking place in civil societies and civil legal systems . It would be especially challenging to find civil structures that would adequately mirror canonical structures and governance in the United States because of its commitment to avoid any kind of formal relationship between the civil government and the Church or any of the Christian churches or other religious bodies. Therefore, when all is said and done, it is not possible to attempt a solution to the puzzle of how best to structure Catholic parishes in American civil law without considering some historical background,5 and also certain aspects of the attitude of the United States Constitution toward religion. Why is the civil structure of parishes such an important question? For a number of reasons, of course, most of them the same in civil as in canon law: first and foremost of all, the unavoidable relationship between the legal structure of an entity and property ownership. There is an unavoidable relationship between structure and governance; between structure and the administration of property; between structure and the administration of revenues produced by an entity.6 There has never been a completely adequate model for the civil structuring of Roman Catholic parishes in the United States. The 2008 Spring Canonical Seminar of the Catholic University of America School of Canon Law addressed the challenges involved in trying to achieve a 5...

American Civil Law Origins: Implications for State Constitutions

We examine the effect of initial legal traditions on constitutional stability in the American states. Ten states were initially settled by France, Spain, or Mexico and had developed civil law legal systems at the time of American acquisition. Although Louisiana retained civil law, the remaining nine adopted common law. Controlling for contemporaneous and initial conditions, civil law states have substantially higher levels of constitutional instability at the end of the twentieth century. We speculate that this effect is attributable to instability in property rights caused by the change in national governments and to the legacy of the civil law system. Copyright 2005, Oxford University Press.

Al-Mughtaribun

The focus of this book is on "the gradual transformation of American Muslims'perceptions and self-identification, coaxed by the ways American civillaw has penetrated and come to dominate their daily lives" (p. vii). Hence, thebook attempts to show the link between law and society by using Muslims inthe United States as a case study. It is of interest to sociologists, legal historians,political scientists, and scholars of religion and touches on the themes ofcivil rights, freedom of religion, social change, the status of minorities, andassimilation.Moore shows how Muslims in the United States have been affected byAmerican immigration law (chapters 2 and 3), religious liberty laws affectingMuslims in prison (chapter 4), hate crime legislation affecting mosques (chapter5), and zoning laws that affect mosques (chapter 6). The sources Mooreuses are historical: court records, interviews, magazine articles, and newspaperstories. She points out that there has been a great transformation in theAmerican legal system's attitude toward Islam. In 1811, the New YorkSupreme Court ruled (in People vs. Ruggles) that the "religion of Mohammed"is an impostor religion, a superstition, and is equally false and unknown(p. x). ln 1962, on the other hand, the District of Columbia U.S. District Courtruled (in Fulwood vs. Clemmer) that Muslims believe in Allah as a supremebeing and as the one true god. It follows, therefore, that the Muslim faith is areligion {p. 82).Have American legal institutions been responsive to the Muslim community?Has the American legal setting transformed the Muslim community? Theanswer to the first question, according to Moore, is that in the 1800s, "No"; butgradually the courts have become more responsive and continue to be moreresponsive as time passes and as Muslims become more politically active. Theanswer to the second question is "Yes."How has the American legal setting transformed the Muslim community?It has limited the numbers of Muslims in the United States (through immigrationrestrictions). It has increasingly allowed Muslims in prison to pray jum'ah,wear kufis on their heads, eat nonpork foods, and obtain copies of the Qur'an.It has protected Muslim mosques from vandalism through stiffer penalties forpeople committing such a crime. It has also restricted the establishment of ...

Ostracism on trial: The limits of individual rights

In 1947, a case of ostracism was tried in the Common Pleas Court of Wooster, county seat of Wayne County, Ohio. The plaintiff, Andrew J. Yoder, filed suit against an old Order Amish Bishop and two preachers asking for $40,000 in damages and a court injunction against a “boycott” that he alleged had been organized against hin throughout the Amish Church. The verdict was based on a concept of justice embodied inthe “reasonable man” doctrine. The jury intended to remedy severe“injustice” inflicted on the petitioner, a former member of the Old Order Amish Church, represented by the bishop and the preachers. The defendants, on the other hand, were steadfast in their belief that their actions were in compliance with the commandments of God— God's justice could not be questioned. This “Meidung” case, a public dispute between Amish mores and American Civil Law, could not solve the underlying issue of conflicting values. The trial led to results that were distasteful to the contesting parties, as well as to the jury, the presiding judge, the officials involved in executing the verdict, and the general public.

Jewish Divorce and the Recalcitrant Husband: Refusal to Give a "Get" as Intentional Infliction of Emotional Distress

Since the giving of the law on Mount Sinai more than three thousand years ago, a distinct legal system has governed the Jewish people. One of the areas included in Jewish law is domestic relations. As a result, when an American Jewish couple marries in a Jewish ceremony two distinct legal systems recognize the marriage: American civil law and Jewish law. If the marital relationship breaks down and one or both parties want a divorce American law requires that the moving party brings an action in a court of law. Assuming proper grounds exist, the court will order a divorce and American law will consider the marriage terminated. Jewish law, however, will consider the parties still married until such time as distinct Jewish legal procedures are performed. Jewish law requires that the husband give his wife a bill of divorcement, known as a get. If the husband refuses to give his wife a get, she cannot remarry in accordance with Jewish law. Such a woman, in Jewish terminology, is an Agunah, a chained woman.

Ostracism on trial: the limits of individual rights

Abstract In 1947, a case of ostracism was tried in the Common Pleas Court of Wooster, county seat of Wayne County, Ohio. The plaintiff, Andrew J. Yoder, filed suit against an old Order Amish Bishop and two preachers asking for $40,000 in damages and a court injunction against a boycott that he alleged had been organized against hin throughout the Amish Church. The verdict was based on a concept of justice embodied inthe reasonable man doctrine. The jury intended to remedy severeinjustice inflicted on the petitioner, a former member of the Old Order Amish Church, represented by the bishop and the preachers. The defendants, on the other hand, were steadfast in their belief that their actions were in compliance with the commandments of God— God's justice could not be questioned. This Meidung case, a public dispute between Amish mores and American Civil Law, could not solve the underlying issue of conflicting values. The trial led to results that were distasteful to the contesting parties, as well as to the jury, the presiding judge, the officials involved in executing the verdict, and the general public.

Jewish Law in American Tribunals

The First Amendment to the United States Constitution erects, in Thomas Jefferson's phrase, “a wall of separation between church and state”. The United States Supreme Court has, with a consistency not evident in all areas of constitutional law, supported the “wall of separation” metaphor even in the face of warnings that “a rule of law should not be drawn from a figure of speech”. The origin of the phrase has been traced to the words of Roger Williams, the founder of the colony of Rhode Island in 1636, who, in his concern over worldly corruption infecting the churches, wrote of “the hedge or wall of separation between the garden of the church and the wilderness of the world…”. With this imposing legal history behind it, the principle of non-intrusion of religious law into American civil law should stand on incorruptible footing. Yet, a survey of recent cases discloses principles of Jewish law relied upon by litigants and on occasion by judges in controversies before tribunals in the United States.

American Civil Law Church Law

American Civil Law Church Law