Comparative Lawyers Research Articles

Rodolfo Sacco’s Theoretical Contribution to Comparative Law: A Personal Account

This article highlights certain aspects of Rodolfo Sacco’s theoretical work on comparative law. Rather than offering an exhaustive discussion, it outlines key points in his intellectual journey to help the reader understand how certain themes gained prominence in his work. An outstanding figure in the comparative law community since the 1970s, he remained active until the end of his life, well into the twenty-first century. Through his many contributions to the field, Sacco took comparative law research in new directions. He developed a more nuanced and complex analysis of the tasks of the comparative lawyer, elaborating an approach to comparison that does justice to the multiple components of all legal systems (“legal formants”) and their dynamics. We owe him a fine study of the silent, implicit dimensions of law that have a major impact on its application (“cryptotypes”), and a reflection on the relationship between law and language that shows how comparative law is deeply implicated in the process of translation.

Shedding Light on the Dark Corners of the Law, by Walking Hand in Hand with Professor Sacco, Master of Italian Comparative Law

Making use as a guideline of a self-authored manuscript—dated February 2000—where the “Maestro” reveals himself, this essay explores the academic life and the scholarly achievements of Rodolfo Sacco, the Italian master of comparative law, who just recently passed away. His intellectual endeavor is described throughout the lenses of a common thread that underlies his entire scholarly output: it his ability to illuminate the dark places of law, finding it where no one had sought it before. This is the essence of his original contribution to the understanding of the legal landscape’s dynamics and it is the core of his cultural legacy, not only to comparative lawyers, but also to the community of the jurists at large.

Rule by Metrics

Abstract We live in societies in which an ever-growing array of activities in a range of fields are assessed, controlled and governed according to quantitative techniques. This paper focuses on processes grounded on quantitative tools (e.g. scores, indicators, rankings, algorithms) that are used in order to measure the performance of processes, people or organizations. Such processes are referred to in this paper as ‘legal metrics’. We explore how different legal systems and sectors rely on legal metrics, and develop a twofold argument. On the one hand, we argue that performance-based quantification often qualifies as a form of regulatory intervention. On the other hand, we contend that performance-based measures are always adopted and applied in legal contexts that react differently to the quantification turn. Both sides of this picture have largely been overlooked by comparative lawyers, even though they imply looking for law in extraordinary places and appraising a variety of legal manifestations in different settings. Understanding which forms of quantitative measures are widespread, in which sectors and regions, made by whom and producing what regulatory effects, is a research task that could (and in our opinion should) be of interest for all comparative law scholars.

The translation of the Chinese Civil Code in a perspective of comparative law

Observing the phenomenon of the translation of statutory texts in China, it is noteworthy that the source language was mainly German until after the plethoric legislation under Deng Xiaoping. Then the pendulum swung back. Chinese is now the source language and statutes are translated into English.What is for a Chinese Court the legal value of the translation of a legal text, for instance of a disposition of the Civil Code? A difference has to be made between an authentic translation, and an official or a private one. Only in the hypothesis that both language versions are authentic, the court will have the obligation to reconcile them in case of divergence between them.For a court having to apply a particular disposition of a statute in a pending case – or for an arbitrator, a legal counsel or a scholar – the practical value of a translation is that the interpretation by the translator himself of the text which has to be translated (even a non-authentic translation), can influence and facilitate their subsequent interpretations by others. If made timely, it could also help the legislator to draft a clearer final text. The same is true for the drafter of a treaty or of a commercial contract.The obvious negative aspect of a translation is that it can contain errors and can by consequence create confusion and misunderstanding by those who later on will have to apply the disposition. Some examples hereof can be found in the Chinese Civil Code.Two recommendations can in conclusion be made, one concerning the moment of the translation, and one concerning a desirable supervision by a comparative lawyer during the translation process.

Gabriele Crespi Reghizzi and his time: A comparative lawyer against the background of the epoch

The article is devoted to an Italian lawyer, a prominent specialist in comparative law Gabriele Crespi Reghizzi (1941–2022), who in the last period of his life worked at the Department of Law of St. Petersburg State University. It talks about main milestones of his academic career: emergence of interest in Soviet and Chinese law, acquaintance with leading scientists in these fields, creation of innovative works. In addition to the law of the USSR and China, he was interested in the law of states of Eastern Europe, India and Africa, focusing on not only genesis of legal systems, but also their development and interaction in the context of international relations. The knowledge and experience of G.Crespi Reghizzi, as it seemed, should have remained within the framework of a narrow academic interest, but economic reforms in China in the 1970s and 1980s and political changes in Europe in the 1980s and early 1990s gave them a fresh start. Professor G.Crespi Reghizzi was widely known by his professional activity as a business lawyer, international commercial judge, consultant on legal aid projects for post-Soviet states. His contribution to the codification of civil law in Russia is noted. Among G.Crespi Reghizzi’s distinctive features as a scientist, the author notes his extremely attentive attitude to legal terminology, and in the case of the Chinese language — to legal ideography, extensive use of primary sources and non-traditional sources, knowledge of several foreign languages. He attracted people, students and colleagues, by virtue of his personal qualities as attentiveness, spiritual generosity, originality of views, willingness to share his exotic experiences. To compile a complete bibliography of G.Crespi Reghizzi’s works seems to be quite difficult, since, besides professional legal publications and publishing houses, he willingly published in a variety of places and forms, wrote a lot of practical and popular scientific works, not to mention the linguistic diversity of his publications. Nevertheless, the article presents his main works, which made a great contribution to understanding the legal system of socialist and post-socialist countries and comparative law.

Constitutional Identities and Traditions: A Conundrum for Comparative Lawyers

This paper elaborates upon a novel understanding of the interaction between constitutional traditions common to the Member States of the European Union and their domestic identity through comparative methodology. It puts forward a bottom-up understanding of identities through comparative case law, while grasping their potential contribution to the content of common traditions. It connects these issues to the ongoing discussion on the values of the EU through a circular model of mutual influence.

Teaching Comparative Law in Eighteenth-Century England: Thomas Bever as a Comparative Lawyer as Exemplified by his Lectures on Polish Law and the Constitution

The origins of comparative legal studies usually date back to the late 19th century. These kind of studies, however, were undertaken on a regular basis much earlier. Among the first serious adherents of the idea of comparing different legal systems was Thomas Bever. Bever was a civilian lawyer who successfully combined practice in the ecclesiastical and admiralty courts of England with Oxford’s fellowship and teaching duties. In the 1760s and 1770s, Bever was teaching the Civil law course on behalf of (or independently of) the current holders of the Regius Professorship. His lectures, unique in many aspects, were crowned with a set of comparative lectures. Bever was presenting the constitutional and legal systems of several European countries, including Poland, both in historical and modern dimensions. The aim of this article is to discuss Bever’s attitude towards comparative legal studies as well as to present his comparative method by reference to part of his lectures devoted to the old Polish law and constitution.

The Role of Comparative Law in the Analysis of Judicial Behavior

Abstract Comparing and contextualizing what judges say about the law is the job of comparative legal analysis. Studying internal and external forces that explain the judges’ choices and their societal effects is the core domain of the comparative study of judicial behavior. Although walls may seem to separate these two projects in terms of their theoretical approaches and methods, the barriers—and the obstacles—are more imagined than real. In an effort to highlight the complementarities between the two areas of studies—and issue what amounts to a standing invitation to comparative lawyers to contribute their specialized knowledge to the analysis of judging—the Article turns first to the aspirations of the study of judicial behavior. Next, we introduce six core theories of judging, along with the methods and data used to assess their implications. Along the way, we flag opportunities for future research, emphasizing potential collaborations among all scholars with an interest in comparative legal analysis.

Comparative Motley: Offerings from a Comparative Lawyer

Comparison is thinking of one in terms of another (or others), and is one of the most fundamental methods of thought process: juxtapose, contrast, compare, seek for differences in the similar and for similarities in the different. The ultimate aim is to understand in the best possible way. In this contribution, comparative law is depicted as a thread running through a necklace. On the necklace are threaded three essential gems of comparative law: theories of methodology; theories of legal systems; and theories of transfrontier mobility of laws. Depicted in this way, one is obviously looking at comparative law pure and simple, rather than comparative contract law, comparative property law, comparative constitutional law, and so on. Although these three gems are the main ones this contribution concentrates on, there are others. It must be pointed out that naming these as gems, and depicting comparative law as joining them into a necklace, takes one directly into the realm of metaphors, which will also be briefly touched upon. In comparative law discourse, controversies—and there are many—are synchronic, never ending, never totally resolved, ever multiplying. This was the case and is still the case.

How (Not) to Compare?: Not Being Inside, Nor Outside

Abstract Despite the clear clue given by Kim L. Scheppele as to the shortcomings of governance checklists, it is surprising that comparative constitutional lawyers have not yet followed it up. In fact, what Scheppele hinted at is that the methodologies we have used so far fall short of detecting the interaction effect of the particular components; this is why we need new methodologies and new ways of seeing. To address this, this article will incorporate some tools, having already taken hold in legal philosophy, into the methods discussions in comparative constitutional law in particular and comparative law in general. Upon benefiting from the distinction between internal and external points of view and showing how hermeneutical one differs from the others, the article will make a discursive analysis of the 2010 constitutional amendment in Turkey through the lenses of these three points of view.

Citizenship Stripping, Fair Procedures, and the Separation of Powers: A Critical Comment on Damache v Minister for Justice

AbstractDamache v Minister for Justice concerned a constitutional challenge to section 19 of the Irish Nationality and Citizenship Act 1956. This section outlined the statutory process the executive branch, acting through the Minister for Justice, had to follow before revoking a certificate of naturalisation. The appellant successfully argued this process was an unconstitutional breach of fair procedures. The judgement will be of interest both to Irish and other public lawyers for its treatment of fair procedures, which the Supreme Court approached in a regrettably blinkered way – seeing only one constitutional principle when several others were at stake. The judgment is a stark reminder for both Irish and comparative lawyers of the fact that the concrete demands of fair procedures must be balanced with a range of competing institutional goods and principles equally important to constitutional democracies: from administrative efficiency to structural principles stemming from the separation of powers.

Overview of United Kingdom Trade Mark and Designs Cases 2019

This report highlights key UK trade mark and design decisions from the past year that may be of particular interest to comparative lawyers. Virgin Enterprises Ltd v. Virginic LLC was a useful reminder regarding distinctive character, the assessment of similarity and how all of this impacts the assessment on likelihood of confusion. Gap (ITM) Inc v. Gap 360 Ltd points out that specifications must be compliant with requirements as set out in the case law, and in particular, IP Translator and Postkantoor, or they will be considered ineffective, especially when trying to avoid a potential dispute. Nomination v. Brealey (t/a JSC Jewellery) shows that the right to resell branded goods is not unqualified and gives us another example of what may be considered a legitimate reason to oppose resale. Bentley 1962 Ltd v. Bentley Motors Ltd serves as a warning to brand owners looking to extend their brand into a new marketplace, noting the limitations that apply to even brands with a reputation when moving across into new sectors. Beauty Bay Ltd v. Benefit Cosmetics Ltd highlights the importance of context in the assessment of confusion in a trade mark infringement claim and demonstrates a situation where marks could be found to be similar but likelihood of confusion is still not found. Claridge’s Hotel Ltd v. Claridge Candles Ltd was not a surprising decision but reminds brand owners to put their best mark forward in enforcement proceedings while Glaxo Wellcome UK Ltd v. Sandoz Ltd & Ors illustrates the difficulties of relying on colour marks to denote trade origin. Another year meant another case involving Michael Gleissnar in Trump International Ltd v. DTTM Operations LLC and unsurprisingly, the Hearing Officer found bad faith in this case. APT Training & Consultancy Ltd v. Birmingham & Solihull Mental Health NHS Trust gave us further insight into what constitutes use of a mark in the course of trade and Aiwa Co. Ltd v. Aiwa Corporation is worth a read for brand owners who are thinking of re-launching a historic brand.

Inside a frame, behind a glass. A preliminary inquiry on law and film in Japan

ABSTRACT This paper provides both lawyers and cinema experts with some insights about the depiction of law and criminal justice in films in Japan. In recent years, there has been an increasing interest of the Japanese movie industry towards ‘courtrooms drama’, i.e., films set in tribunals and having lawyers, judges, and prosecutors as main characters: a small ‘Golden Age’ of law as depicted in Japanese cinema. This paper (co-written by a comparative lawyer and a film studies specialist) will address this phenomenon from two perspectives: one from a legal studies and popular culture framework, analyzing how such movies reflect – and at the same time shape – the ‘legal imagination’ in Japan. The other, from film studies, focuses on technical, directorial aspects, to emphasize how authors intend to depict the law and its actors.

Challenges in the Interdisciplinary Use of Comparative Law

Seemingly, comparative law invites quantitative analysis: there are more than 200 sovereign states, and many of them are federations, which increases the number of jurisdictions. Yet actually, proving causal claims about the effect of some institutional detail on some outcome variable of interest with the help of comparative law is fraught with challenges. Translating (legal) text into numbers is not easy in the first place. But even if this initial step has been successful, there are the usual concerns with observational data, like reverse causality, omitted variables, or measurement error. More concerning even is the fact that legal orders do not develop independently of each other. This calls the independence assumption into question, which is at the core of any statistical analysis. The paper analyzes the challenges, discusses potential solutions, and explains why the traditional attention of comparative lawyers to institutional detail is key.

Overview of United Kingdom Trade Mark and Designs Cases 2018

This report highlights key UK trade mark and design decisions from the past year that may be of particular interest to comparative lawyers. Sky v. Skykick may fundamentally change the approach to filings and enforcement within the EU system, and is a very interesting case to follow in view of Brexit. W3 Limited v. easyGroup Limited and another serves as useful guidance in respect of the threats provisions and highlights the difficulty and high bar involved in demonstrating acquired distinctiveness. Glaxo v. Sandoz reminds us of the need to strike a balance between the substantial costs involved in gathering survey evidence with the benefit it can bring to the Court. In relation to online matters, Argos Ltd v. Argos Systems Inc highlights another development in the UK courts’ approach to trade marks online, whilst Student Union Lettings Limited v. Essex Student Lets Limited (SULETS) concerned the application of the Sec. 11(3) Trade Marks Act 1994 defence. Walton International Limited and Giordano (Hong Kong) UK Limited v. Verweij Fashion BV was of note because it showed a level of discretion observed by the English courts with regards to the conduct of legal proceedings, and Massimo Osti SRL v. Global Design and Innovation Ltd raises important questions as to whether claims should be issued at the High Court or at IPEC. Henry Martinez t/a Prick & Another v. Prick Me Baby One More Time Ltd & Another highlights that, whilst localised goodwill can indeed exist, showing evidence of deception or confusion is crucial to be successful within a passing off case. In the designs space, L’Oreal Societe Anonyme & L’Oreal (UK) Limited v. RN Ventures Limited served as a useful reminder of the law on Registered Community Designs and the infringement assessment.

Global Legal History, Legal Systemology, and the Genealogy of Law

Comparatists in the social sciences are supposed to analyze social phenomena from a static point of view, with no interest in their dynamic aspects. However, this is not true for comparative lawyers, since they are committed to analyzing legal change, which necessarily enhances aspects like the circulation of legal models as well as their transformation due to the variation of the space-time coordinates. The dynamic aspects are of such importance for comparatists that the building of legal families, reflecting a static approach to comparative law, is increasingly questioned in its foundations and capability to detect decisive similarities and differences between legal systems: the evolution within the common law–civil law divide and its connection with the ruling of the economic order. The building of legal families will not be removed from the comparative lawyer agenda, at least in recognition of its didactic function. However, comparative lawyers are increasingly aware of the ideological value of taxonomies and increasingly convinced about the necessity to replace them with genealogies.

An Interdisciplinary Approach for Comparative Lawyers: Insights from the Fast-Moving Field of Law and Technology

Focused on comparative law and technology, the Article demonstrates the importance of recent advances of comparative law on interdisciplinary research and argues that comparative law becomes essential to broaden this approach, when facing modern techno-scientific issues. Technological convergence has consequences not only for human rights and the way they can be exercised, but also for the fundamental concept of what characterizes a human being. Social perceptions of risks and geopolitical contexts deeply affect the legal approach to uncertainty. Converging technologies thus challenge us to develop a new, wider perspective on the concept of safety. Comparative law research is functional to deal with technological issues characterized by a cross-national and cross border nature. Additionally, it helps to integrate non-legal knowledge into legal culture. It thus becomes an essential pre-condition to answer complex and innovative questions. Even when research questions focus on the sole legal consequences of technology innovation, this cannot be done without a broader vision of the multidisciplinary problem technology offers. In fact, such a problem appears like an elephant: a unique perspective will not faithfully represent the real image. The Article focuses on a case-study: robotics. An emerging techno-scientific arena where neuro-sciences, informatics, and other disciplines, however, will deeply orientate the analysis of all the legal issues.

Behavioural Analysis and Comparative Law Improving the Empirical Foundation for Comparative Legal Research

During the last three to four decades the ‘correct’ comparative method has become the object of an intensive debate. This debate by now also covers empirical methods that have started to ‘infiltrate’ comparative law ever since the turn of the century. Behavioural analysis, however, has not yet come into the picture. The following chapter, therefore, explores how behavioural research can be put to comparative use and sheds light on recent attempts to do so. It concludes that combining comparative and behavioural insights may further our understanding of consumers’ needs and improve our ability to design legal responses. In particular, it may help to understand why legal systems are differently designed in different countries and why the same rules may trigger different reactions in different countries. The chapter, therefore, suggests that behavioural scientists and comparative lawyers should work closely together to better understand cross-cultural consumer behaviour and the complex relationship between consumer behaviour and consumer law.

Overview of 2017 UK Trade Mark and Designs Decisions

This report highlights key UK trade mark and design decisions from the past year that may be of particular interest to comparative lawyers. The Court of Appeal upheld the High Court’s decision in the Kit Kat case, thereby confirming the rejection of the registration of the four bar Kit Kat. The decision was based on a very technical point regarding the assessment of acquired distinctiveness, and comparative lawyers will appreciate the divergence between the decisions of the UK and EU courts on this point. We are still awaiting the decision in Sky v. Skykick, where the trial judge rejected the defendant’s application for a pre-trial reference to the CJEU and refused to stay the infringement proceedings. This case concerned the application of the “own name” defence in UK trade mark infringement matters. In BMW v. Technosport, the courts addressed how use of a sign may “affect any of the functions of the trade mark”, and the case of Bhayani v. Taylor Bracewell provides further guidance around the ownership of goodwill as opposed to a mere reputation. The case of Merck v. Merck continued in 2017 and will carry on into 2018, with two pharmaceutical companies fighting over the use of the mark MERCK, particularly in cyberspace. The Court of Appeal remitted the case back to the High Court for consideration on a number of points. Caspian Pizza is a decision that will undoubtedly provide comfort to smaller businesses that have been operating within a particular locality and can establish corresponding localised goodwill. The issue of groundless threats was discussed again in 2017 in the case of Nvidia Corp v. Hardware Labs while the question about whether the sale of “grey goods” can give rise to criminal liability was discussed in R v. M, R v. C, R v. T. Online blocking injunctions were taken one step further in the Football Association Premier League case. The concept of a trade mark trolling was explored in the number of UKIPO Registry decisions involving Michael Gleissner, who sits as a director of companies that own a questionable number of trade marks and domain names. On the designs front, Neptune v. Devol Kitchens considered the scope of a UK design right following the Intellectual Property Act 2014.

The Cold War and Comparative Law: A Reflection on the Politics of Intellectual Discipline

How much does the current state of comparative legal studies owe to Cold War political imperatives? What happened to our discipline once such imperatives declined in the aftermath of the bipolar world? Comparative lawyers have been completely naive about the impact of the Cold War on their own discipline both as it reached maturity in the 1950s and as it developed after the fall of the Berlin Wall until now. This consequence of the professional depoliticization of comparative law is especially troublesome since the Cold War has accompanied in its entirety the historical moment in which the common law tradition, especially in its U.S. epiphany, has been able to conquer global legal hegemony. Thus, the current disciplinary knowledge of comparative law, the very toolkit of our methodology, has developed in the context of the Cold War confrontation and has reached full global dominance in its aftermath. It is worth thinking about possible implications of this context on the professional project of legal comparativism if we wish to maintain an acceptable level of critical understanding of ourselves.