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This book was written “for general readers interested in fixing America’s broken legal system.”1 What follows is a compelling indictment of the state of the law and legal culture in the United States, with a prescription to restore “the government of laws” based on how things work in Germany. In reaching out to “general readers,” people interested in the legal system but not active in the legal professions, Maxeiner uses rhetoric, repetitions, clear language, illustrations, and inventive vocabulary (for example “zombie laws”), which makes for a fascinating story for both laypersons and experts. The strength of this book is at the same...

Auto lenders were perhaps the biggest winners of the 2005 Bankruptcy Reform. Cars depreciate quickly, so borrowers often owe more than their car is worth. Prior to the Reform, these borrowers could reduce the principal on their auto loan to the market value of the car through a ?cramdown? in Chapter 13 bankruptcy. The Reform prohibited cramdowns during the first two and a half years of an auto loan. This paper is the first to estimate the causal effect of this anticramdown provision on the price and quantity of auto credit. The authors use a novel empirical strategy that relies on the fact that eliminating cramdowns affected only one of the two types of consumer bankruptcy: Chapter 13. They exploit persistent historical variation in states? usage of Chapter 13 generated by differences in local legal culture. Using difference-in-differences regressions, their empirical strategy compares pre-Reform and post-Reform auto loans across states with persistent historical differences in the share of bankruptcies filed under Chapter 13. They find that eliminating cramdowns decreased interest rates on auto loans in the average state by 15 basis points, with a larger decline in states where Chapter 13 is more common. The decline in interest rates occurs in the exact month that the Reform went into effect, and the authors rule out other aspects of the Reform as possible causes. Next, the authors estimate the effect on the quantity of auto credit. Using quarterly data from the FRBNY Consumer Credit Panel based on Equifax credit reports, they examine the effect of eliminating cramdowns on the number and size of new auto loans. The estimates show a small, negative, and insignificant impact on the number of new auto loans. The authors do find some evidence, however, that loan sizes increased among subprime borrowers.

We have witnessed a sharp rise in the quest for a methodologically sound analysis of the “migration,”1 “transfer,”2 and “borrowing”3 of concepts between different legal systems.4 At the time of its foundation as a modern federal state in 1848, the Swiss Confederation (Switzerland) formed a republican island in an ocean of monarchies in the heart of Europe. The foundation of the United States of America, in turn, may be viewed as the first large-scale experiment in federal republicanism in the modern era, having been initiated at a time when what today constitutes Switzerland was a rather loose confederation of...

Regional human rights systems vary with respect to the intrusiveness of human rights remedies into the domestic orders of states from a spectrum of more intrusive remedies in the Americas to less intrusive remedies in Europe. This article identifies three potential explanations as to why the intrusiveness of human rights remedies varies across the three regional systems: (i) the legal design explanation, (ii) the case-history explanation, and (iii) the legal culture explanation. The article argues that of these competing explanations, the legal culture explanation fares better than the other contenders in accounting for variation in the intrusiveness of remedies over time. The other two explanations, however, are also of use. The legal design explanation accounts for why the courts in the Americas and Africa are more amenable to intrusive remedies. The case-history explanation is able to explain sudden bursts of intrusive remedies in all three regions.

This article considers the current state of the field of legal history within an intersectional framework. It also examines how legal historians address questions of exclusion and inclusion in American legal culture, focusing on scholarship at the intersection of legal and cultural history. Finally, this article suggests ways that future scholars may write fuller and more inclusive legal histories that cover a vibrant, innovative, and diverse array of subjects.

Imperial Spanish legal codes empowered slaves to accuse their masters of abuse or cruelty (sevicia or maltrato) in court and have those complaints investigated and adjudicated by colonial magistrates. Those masters found guilty of abusing a slave could, by law, be compelled to sell the offended slave to an owner who might treat them better. The consideration of such sevicia cases from late-colonial Lima, Peru, allows for the in-depth consideration of the legal culture of slavery in late-colonial Spanish America, long an area of interest for scholars of comparative slavery, and of master-slave relations more generally. The contests that animate these case files over the treatment of slaves, particularly in terms of acceptable alimentation and/or corporal punishment, and over the potential sale of slaves, reveals much about the nature of late-colonial slavery and ongoing social discourses on the acceptable treatment of the enslaved. The in-depth examination of this body of these sources reveals a compelling paradox that saw slaves expanding the types of complaints that magistrates might hear under the rubric of sevicia; a colonial judiciary ready to hear a broader array of cases brought by slaves but unwilling to expand slave legal agency at the expense of master dominion; and, slaveholders who unanimously decried the ability of slaves to bring such suits against them but generally willing, ultimately, to acquiesce to slave demands to seek new masters.

As criminal procedure systems, particularly in Europe, evolve under the influence of international norms and adapt to modern circumstances and needs, they seem to lose many of their traditionally characteristic differences. One aspect of this process pertains to the way systems seek to ensure that the truth is found. In adversarial systems, truth finding is traditionally achieved through debate between equal and autonomous parties who each investigate and present their own case. That has changed significantly over the past fifty years. But that change does not, as is often suggested, reflect a process of convergence towards the inquisitorial or realignment towards a new procedural type. Using the recent development of some seemingly inquisitorial elements in Scottish criminal procedure—the disclosure of prosecution evidence and the duty on the state to investigate all incriminating and exculpating evidence—this Article argues that procedural tradition and legal culture are resilient. Systems of criminal procedure will try to hold on to their traditional principles, guarantees, and mechanisms for truth finding. However, there are limits to what the adversarial tradition can accommodate. If those limits are crossed, systems do not simply converge on the continuum between inquisitorial and adversarial ideal types. Instead, the interaction between conservative tradition and converging trends can cause incoherence in a procedural system's approach to truth finding. Such incoherence can result in an ambiguous allocation of responsi- bilities between prosecution and defense and a lack of procedural guarantees for fair and reliable truth finding.

This is a review of Moshe Cohen-Eliya’s and Iddo Porat’s book, “Proportionality and Constitutional Culture”. The authors’ project is to explain proportionality’s origins, especially as embedded in political culture and jurisprudential development. They aim to understand why proportionality has successfully spread from Germany to the rest of Europe, Canada, South Africa, India, Israel, and international legal instruments, but has not caught on in American constitutional law, which employs balancing as a mode of constitutional analysis. The authors argue that proportionality and balancing are paradigmatic of two distinct legal cultures. Proportionality is best understood as the centerpiece of a “culture of justification,” that is a demand that government offer justifications for its actions. Balancing, however, is a doctrine whose role is relatively marginal in the United States, part of a legal culture that the authors define as a “culture of authority,” that is a focus on whether the state acted within the scope of its legal authority without examining the substantive merits of the action. These cultural differences also explain American skepticism about human rationality and its preference for markets, the common law, popular democracy, and suspicion of government generally, which, in turn, generate a preference for markets over regulation, separation of powers over unified government, and federalism and decentralization over centralized control. The Book’s argument is compelling as it is elegant. But elegance has its price. As it reveals, it also obscures. By distilling centuries of cultural evolution to a single distinction (authority/justification), the authors necessarily downplay past and present contestations in American constitutional law. Contrary to the authors’ claims, American constitutional law has, at different points in time, embraced and rejected balancing and proportionality; it has embraced and rejected a culture of authority; it has embraced and rejected a culture of justification; it has embraced and rejected regulation, centralization and decentralization. Although the Book highlights important features in American constitutional law, linking them to the development of balancing, doubts remain whether its thesis delivers the explanatory punch it promises. After laying out the contested terrain of American constitutional law, I offer two reasons why proportionality has not been embraced in the U.S. First, proportionality was incorporated into post World War Two legal thinking at a time when the U.S. was already locked into a different constitutional trajectory. Second, given the similarities between proportionality and balancing, there are few incentives, and serious legitimacy costs, for importing proportionality as a central doctrine of American constitutional law.

This article deals with judicial irrelevance in democratic consolidation, on the basis of the Serbian example. It surveys the politics of the Constitutional Court in post-Milosevic Serbia, and shows that the Court has failed to become a significant veto player or an important mechanism for facilitating the transition to democracy. To explain this conclusion, this article turns to the play-it-safe strategy the Court applied in the most controversial political cases, in which it would have been possible to initiate changes in public policy, including cases concerning constitution-making, the state of emergency, judicial reform, and political decentralization. The analysis will demonstrate that the roots of judicial dormancy in political disputes derive from deferential ideology, the anti-politics approach and institutional insecurity. In addition, an approach from legal culture perspective will indicate that the Court’s latent incapacity to contribute to democratic consolidation also stems from judges’ past habits and extensive ideology of legal formalism. For this argument, militant-democracy cases will provide a good illustration. Finally, from a more theoretical perspective, the article suggests that the passive role to which courts are consigned in authoritarian regimes may decrease the probability for the judges to play an influential role in the transitional phase, and casts doubt on the thesis that an environment of highly divided politics generates robust constitutional review, at least in absence of “insurance thesis” and in societies where sham constitutional courts existed in the previous authoritarian regime.

Many in the current legal culture perceive religious reasoning as irrational, as well as divisive and dangerous. Both legal scholars as well as state and federal judges agree that this perception affects the outcome of both free exercise and establishment cases. The two sides differ in that one side believes that to treat all religious claims as irrational, divisive, and dangerous is unjust; whereas, the other side thinks that this caricature is correct and that it needs to be enforced.

One of the reasons for the failure of arbitration in Pakistan is the inefficacious law on interim measures. A party can get these measures from court only after the commencement of requisite proceedings and after following a very lengthy procedure in an environment where the courts have tendency to go into the merits of dispute at this preliminary stage. The new proposed law on arbitration should not only remove these lacunae in the present law but should also modernize the arbitration law in Pakistan by giving the arbitrator power to issue an ex parte interim measures also enforceable against the non-parties. Since, the conferral of such powers to a private person, who is not appointed as a judge by state, is not new in Pakistan, it is suggested to incorporate in the new proposed law the amendments in the United Nations Commission on International Trade Law (UNCITRAL) Model Law regarding the interim measures as were made in 2006 because that is also compatible to the Pakistani legal culture.

Olivier Corten, and Pierre Klein (eds). The Vienna Conventions on the Law of Treaties: A Commentary . Oxford: Oxford University Press, 2011. Pp. 2176. ISBN: 9780199546640. Oliver Dorr, and Kirsten Schmalenbach (eds). The Vienna Convention on the Law of Treaties: A Commentary . Berlin: Springer, 2012. Pp. 1423. ISBN: 9783642192913. Mark Villiger. Commentary on the 1969 Vienna Convention on the Law of Treaties . Leiden: Martinus Nijhoff, 2009. Pp. 1058. ISBN: 9789004168046. Commentaries on international law abound and proliferate. To reflect upon this trend in international legal scholarship, three commentaries on the Vienna Convention on the Law of Treaties are reviewed. They are compared with regard to the ways in which they deal with three pertinent issues in the law of treaties: the ascertainment of jus cogens norms, the notion of object and purpose and grounds of invalidity, termination, and suspension. As a scholarly genre, commentaries form part of the legal culture of legal systems. So the review discusses their function in the past, in the present, and in their possible future. Their roots lie in the schools working on Roman law in the Middle Ages. They gained importance for international legal scholarship when international law entered the process of codification. Today, commentaries fulfil several functions in international legal discourse, the most important of which is that they structure this discourse. Digitization will seriously impact on all fields of scholarly publishing. The review concludes by discussing the possible changes in this scholarly genre. Those are accessibility, layout, referencing, inclusion of other media, and the possibility of enhanced discourse within the commentary.

This article analyses the Old English terms for ‘pledge-giving’ within the context of Anglo-Saxon law codes and related material such as charters and wills by means of a contextual analysis of the occurrences of such terms. It argues for the centrality of the concept to Anglo-Saxon legal interaction as the means by which agreements, in particular between individuals, were made binding and shows that this had linguistic consequences by tracing the development of the collocation að and wedd (‘oath and pledge’) into a formulaic word pair.

This article seeks to provide a fresh perspective on long-standing debates about the role of the written word in later Anglo-Saxon legal culture. Using the law codes of King AEthelstan's reign as a ‘case study’, it argues that many of the unusual features of early English law are not so much products of orality, as of a fundamentally different approach to legal norms than is prevalent in the modern Western world. It thus seeks to move beyond recent literacy-orality debates, suggesting that it is more profitable to investigate the attitudes shown towards legal norms (both written and oral) within Anglo-Saxon society.

The effective development and operation of the law faces many obstacles. Among the more intractable yet hidden barriers to the law are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from different legal cultures are forced to interact as part of the implementation of the law across two different legal cultures. This conflictual interaction can impede or block the success of that law. While present in domestic legal systems, these conflicts are more likely, and may be deeper, between the many different legal cultures involved in the international legal order. Identification of such legal cultural disconnects and discontinuities is the first step towards developing strategies to ameliorate potential conflicts between opposing legal cultural characteristics. This identification requires the examination of the relevant legal systems with legal culture in mindca legal cultural analysis. However, this methodology is rarely employed. To the extent that we do see legal cultural analyses, they are applied almost exclusively in the domestic arena.When it is applied across legal systems, it becomes a part of comparative law methodology. This merger of comparative law and legal cultural approaches is unusual, indeed almost unheard of in the international legal arena. This article explores this methodology and argues that it is possible and valuable

This text of the Lalive Lecture 2012, as adapted for publication, examines the common denominators and differences regarding the major aspects of commercial and investment arbitration. It does so in identifying those issues and criticisms mostly discussed in recent years and provides the author's views based on his practical experiences as an arbitrator in many cases of both commercial and investment arbitration under rules such as the ICC, LCIA, SCC and others created for commercial arbitration and such as ICSID, the ECT, NAFTA and CAFTA created for investment arbitration. In particular, the following issues are discussed: The Legal Culture, the Legal Framework and the Applicable Law, the Selection of Arbitrators, Jurisdiction, Case Management, Confidentiality or Transparency, Predictability and Consistency of Decisions, and Perspectives for the Future.

The discourse on the 'Islamization' of laws in the legal systems of post-colonial Muslim states is dominated by two conflicting narratives. The dominant Western narrative views the Islamization of laws as the reincarnation of narrow and archaic laws embodied in discriminatory statutes. In contrast, the dominant narrative of political Islam deems it as the cure-all for a range of social, political and economic ills afflicting that particular Muslim state. This Paper presents a deeper insight into the Islamization of Pakistan's law. Pakistan has three decades of experience with incorporating shari'a law into its Common Law system, an experience which has been characterized by a constant struggle between the dominant Western and Islamist narratives. Pakistan's experience helps us deconstruct the narratives and discourses surrounding Islamization and understand that the project of incorporating Islamic laws in a modern Muslim society must be based upon indigenous demands and undertaken in accordance with the organically evolving norms of recognition, interpretation, modification and enforcement in that society. Furthermore, substantive law cannot be understood or enforced outside of a legal system, its legal culture(s) and professional discourse(s), and of the broader socio-political dialectics that give context and relevance to it. Therefore, we need to shift focus to the systemic problems deeply ingrained in Pakistan's legal system that allow law and legal processes to be used to prolong disputes and cause harassment. Islamic legality can, in fact, play a significant role in breaking down the resistance that vested interests may offer to such a restructuring of the legal system along more egalitarian lines.

In 1884 an Ottoman public prosecutor and fellow officials stood trial for abusing their official authorities when attending to an incident in one of Istanbul's neighborhoods. A published verbatim report of the proceedings is used in this article for discussing Ottoman socio-legal change in the late nineteenth century, employing a microhistorical perspective. Following a major reform in the new court system, which was established in the 1860s (the Nizamiye courts), the judicial authorities used the trial in question for transmitting the commitment of the modernizing state to the rule of law, exhibited by the principle of officials' accountability. Features of the reformed judicial system and its distinctive legal culture are demonstrated in this article by unfolding the judicial aspects of this episode and by discussing connections between them and the immediate socio-political and socio-legal contexts of the trial.

Legal enactments, where they introduce profound changes, lose effectiveness unless they are accompanied by well-conceived and systematic efforts in the legal culture itself. If the new rules are not properly understood, they may not be applied correctly or, worse, not at all. This explains why the far-reaching reforms that have dramatically transformed the legal landscape in Latin America have not been considered from the standpoint of their potential consequences, particularly in relation to contracts and non-state law, as legal scholars and legal practice in general still lag far behind. This contribution will highlight the relevant changes that have taken place in the region. Important lessons may be drawn from the Latin American experience. Emphasis will be placed here on two aspects: first, the general trend, i.e., the fact that the applicability of non-state law to contracts is widely accepted in the region through a vast array of legal and conventional enactments, and second, the fact that, in general, the legal community in the area may not be fully or adequately aware of the powerful consequences of these regulatory developments.

Typically and importantly, in exploring the systemic aspects of the Union in our attempts both to reach conceptual understanding as well as, instrumentally, to explain its success and failures, we reach out to the political and the legal. As regards the former, our systemic approach is to focus on institutional structure and decisional process. As regards the latter, our systemic approach focuses not on the substantive, material, primary rules of Union law but on what we commonly call the “legal order” and its own operating system—the systemic secondary rules and principles that hold together the substantive content. The interaction between the political and legal for long has been a mainstay of the field, a rich and productive seam, the mining of which has enabled us to give a broader and deeper understanding of both the conceptual and the operational. In this exploratory essay, I reach out to prior questions as regards both the political and the legal, questions concerning the culture that undergirds political structure and process as well as legal order. Political and legal culture are “prior” in an ontological sense, they inform specific institutional arrangements and, at times give them meaning. Culture, including political and legal culture, is never static. It may inform the specific institutional arrangements, but, in turn, it is itself informed, shaped, and modified by the arrangements in a continuous cycle of interaction. This poses a formidable methodological Gordian knot, which may explain why, despite our longheld understanding of the importance of culture in any systematic analysis of polity, it has received somewhat less attention in European Union studies. My way of cutting through the knot, rather than unraveling it, has been to examine the temporally “prior,” the prior-in-time, through what, I hope, is a fresh look at some of the most noted foundational instruments (texts) of European integration. This is an inevitably limiting methodology since it cuts out the dynamic, that continuous

This article explores the role of the legal profession in urban devel opment along the U.S.-Mexico border in the nineteenth century. It argues that lawyers, through their tripartite roles as land brokers, boosters, and social engineers, were one of the primary forces in social and legal trans formation during this period. Drawing from research on one particular border town, that of El Paso, Texas, this article counters prior scholarship that has largely either underplayed the role of lawyers in western develop ment altogether, or treated them merely as instruments of capitalists and cattle ranchers. Lawyers in El Paso had a direct role in the conversion of El Paso from an isolated, frontier community to a burgeoning border metro polis. A key part of this change was the shift from a cooperative multiethnic community?where Anglo Americans, Mexican Americans, and Tigua Indians shared in the governance of the county and the disposition of the law?to one that was dominated by Anglo Americans only. This article demonstrates that as El Paso became more connected to other metropolitan areas, to state and federal governments, and to transnational commercial networks, it simultaneously became profoundly more stratified by race and national identity. By looking to El Paso's legal history and the changes in its legal culture during this time of transition, we can see how deeply involved were local lawyers not just in economic growth but also in racial and cultural boundary-drawing. These findings have repercussions for how we understand both the role of the legal profession and the mechanics of urban growth and development during the nineteenth century.

The United States is generally proud of its leadership role at the Nuremberg trials, making America's current rejection of the precedent they established seem paradoxical. This article approaches the "Nuremberg Paradox" by examining the French experience with the Nuremberg trials, and comparing France's adoption and internalization of international criminal law to that of its American cousin. The Article concludes that an important reason that the Nuremberg principles never took root in the United States stems from the different legal cultures and traditions of the two countries, particularly as regards the field of international criminal law. Examining the inter-war, post war and modern application of international criminal law in France and the United States, one is struck by the long-standing legal, philosophical and political differences exhibited by the two countries' approaches, and perhaps most starkly, the differences that appeared during the negotiation, adoption and ratification of the International Criminal Court Statute in 1998. Indeed, although the French Parliament was willing to ratify the ICC Statute and at the same time adopt a constitutional amendment abrogating the immunities and future amnesties granted to its own members and the President of the French Republic, U.S. opposition to the treaty has been consistent and, at times, overwhelming. In exploring these questions, the article surveys the interwar scholarship, the post-world war II prosecutions of Vichy collaborators and former Nazis in the Touvier, Barbie, and Papon cases, and France's more recent exercises of universal jurisdiction in the modern period of international criminal law. The implications of the French experience are analyzed in light of Harold Koh's transnational legal process theory, which captures the process by which France internalized the Nuremberg principles, but does not explain why that process took hold in France but not in the United States. The Article's central claim is that deeper historical, cultural and social factors that influenced French legal culture explain the differences between the two countries approaches. Indeed, an examination of the French precedent illuminates our understanding of how and why international criminal law remains only superficially and sporadically enforceable in the United States.

Malawi's democratic Constitution of 1994 shifted the law in a pro-poor direction. With the judiciary emerging as a surprisingly strong institution in an otherwise weak political system, one might expect a body of pro-poor jurisprudence to develop. This has not been the case, and this article investigates why. After considering patterns of poverty and the role of law in the dynamics of economic marginalization in Malawi, we examine factors assumed to influence the use of courts by the economically marginalized, the strength of their legal voice, and the response of the courts to poor people's social rights claims. We find an interplay between factors impeding the demand for pro-poor justice as well as its supply: lack of litigation resources; high access barriers; the pull of alternative institutions; and the nature of Malawi's legal culture.

Italy presents a nascent federalism, inventing its Regions to address national political blockages. Evolving relations between Regions and State, plus supranational union, illustrate roles and origins of Italy's State institutions and constitutional rule of law. As the State invents Regions and embraces Supranationalism, its institutions and cultural values assure continued guarantee of fundamental constitutional principles. Electoral reform, referenda, New Deal-style authorities and judicial activism, all within Italy's historically-founded consensus on constitutional rule of law, reinforce the State and strengthen its role of guaranteeing such rule of law. As Italy continues its experiment of evolving from a unitary to a decentralized, federal-type constitutional democracy, its national judiciary and civil service, along with its legal culture which includes national organization of legal education and professions, support its institutions in assuring constitutional rule of law. Italy's experience may yield insights for other States' redefinition of federalism, e.g. Argentina, Brazil, Mexico, and Russia, as they address challenges of applying the constitutional rule of law, while confronting change.

This article focuses on the challenges associated with delivering justice to populations which have suffered large-scale past abuses. In particular, given the plethora of transitional justice `models` now available, what criteria should governing or transitional authorities use when deciding between domestic, international and hybrid courts? The context is a case study of one of the United Nations` (UN) most recent and extensive transitional justice projects. In 1999, the UN Security Council endowed the UN Transitional Administration in East Timor (UNTAET) with wide powers of legal governance and administration. Among its responsibilities, UNTAET was tasked with developing a judicial framework through which to process the large number of international crimes perpetrated during Indonesia`s occupation of East Timor and in the lead up to international intervention. How UNTAET undertook this task, the problems that were encountered and whether such problems were resolved provide important insights into the nature of international intervention and conflict management. These lessons learned should be incorporated into the current discourse on how the UN should proceed in future missions where transitional justice is a stated priority. 1 The information presented in this article draws upon the results of a two-year field research project conducted primarily in the District of Covalima, East Timor. It is shown that the United Nations must look to national constituencies and the population at large, as well as recent developments in international law and practice, when deciding upon the mix of legal mechanisms that will best suit the nature of the conflict, the existing legal culture and the political and socioeconomic context of the society in question.

This article identifies a range of ideal-type models of prosecutorial fact-finding that may be discovered across a range of different countries and examines how these contribute to various cognitive errors and biases. It concludes by considering various means of minimizing the risk of error and bias.

That disposition to theft with which they have been branded, must be ascribed to their situation, and not to any depravity of the moral sense. The man, in whose favour no laws of property exist, probably feels himself less bound to respect those made in favour of others. When arguing for ourselves, we lay it down as a fundamental, that laws, to be just, must give a reciprocation of right: that, without this, they are mere arbitrary rules of conduct, founded in force, and not in conscience: and it is a problem which I give to the master to solve, whether the religious precepts against the violation of property were not framed for him as well as his slave? (Thomas Jefferson 11; my emphasis). ********** The subject of racializing crime and criminalizing race has been treated at some length in the juridical enterprise of critical race theory. Cornel West has referred to critical race theory as "an intellectual movement that is both particular to our postmodern (and conservative) times and part of a long tradition of human resistance and liberation" (West xi). The common objective in this area of legal scholarship is to challenge the ways that racism is normalized. Scholars see their work as revealing and challenging the "ways in which race and racial power are constructed and represented in American legal culture, and more generally, in American society as a whole" (Crenshaw xiii). An underlying assumption in this process is that the law has not and does not operate outside of politics. It is not a "determinate, objective, bounded, neutral" enterprise. Rather it is bound up with politics, which is "open-ended, subjective, discretionary, and ideological" (xviii). In other words, the law is "an active instance of the very power politics it purports to avoid and stand above" (xxiv). Scholarship in this area assists in deconstructing myths about race and deviance, and it challenges the idea that deviance, immorality, and criminality are inherently connected to race as that term has been used to refer to a category for hierarchizing humans. (1) It facilitates a response to the question of how American legal and social practice contributed historically to the racialization of theft and unethical behavior, in general, and to the construction of the popular American image of the "thievin' negro," in particular. For those of us concerned with African American literary history, this raises the question of how African American authors have engaged this particular problem. How do representative literary texts function in relationship to discourses that produced the problem? Scholars in the field of African American literature are well aware that the literature has often functioned counterdiscursively in relationship to American historical and literary narratives. In this context, "counter-discourse" suggests more than a response or reaction to the dominant discourse driving negative stereotypes; it involves a preemptive strike, an overt action that anticipates a continuing future struggle. (2) Just as African American women intellectuals labored in centuries past to counter the evolving stereotype of the sexually available and licentious black woman (see Carby), African American authors of both genders have used their writing to counteract the effects of, among other negative images, the stereotype of the black thief. Frederick Douglass's Narrative of the Life of Frederick Douglass: An American Slave (1845) and Harriet Jacobs's Incidents in the Life of a Slave Girl (1861) provide two such early examples. In Narrative and Incidents, the authors' positing of self as subject allows them to critique the social and cultural factors that contributed to the development of the stereotype of the black thief. The individual subject (Jacobs or Douglass) becomes a collective subject (black America) speaking on its own behalf, providing its own narrative of events. Both texts not only exhibit their authors' awareness of the developing stereotype, but they also call attention to the ways that legal and other discourses operated to shape the stereotype. …

In the legal process, there are fewer ubiquitous cognitive problems than is often thought. Optimal fact-finding arrangements depend on a variety of factors, so that those intent on improving these arrangements face different problems in different procedural settings. In examining factors with a bearing on best fact-finding practices, the author focuses first on factors that are internal to legal culture, such as the varying profile of decision-makers, the type of proceedings, and the objectives of justice. He then explores the influence of extra-legal factors, such as the role of political ideology, governmental structure, and the general cultural context on adjudicative fact-finding. Special attention is given to the question of whether radically different cultural environments render their prooftechnologies discontinuous, or incommensurable. The paper ends on a cautionary note, suggesting that the absence of a suitable taxonomy of facts subject to proof makes it very difficult to apply the insights of cognitive science to factual inquiries in adjudication.

Far too often one sees citation by counsel of, for instance, an American judgment in support of a proposition relating to our Constitution, without any attempt to explain why it is said to be in point. Comparative study is always useful, particularly where Courts in exemplary jurisdictions have grappled with universal issues confronting us. . . . But that is a far cry from blithe adoption of alien concepts or inappropriate precedents. Justice Johann Kriegler in Bernstein v. Bester1

Rules and Networks. The Legal Culture of Global Business Transactions edited by Richard P. Appelbaum William L. F. Felstiner and Volkmar Gessner. Published by Hart Publishing, Oxford (2001, xiii + 427 pp). ISBN 1-84113-296-9. This book is a welcome addition to the bibliography discussing the emergence of a global regulatory framework for international business transactions. The discussion is not new1 nor is it purely theoretical, but it does have an impact on legal practice; in particular, on arbitration. However, the perspective of Rules and Networks is novel as it offers theoretical support and interdisciplinary legitimacy for many arguments already made. While globalization in the aftermath of 11 September is no longer fashionable,2 the main premise, that as far as international commercial relations are concerned one could observe the incremental organic creation of an autonomous system which operates on the basis of rules of law rather than legal systems, is appealing and increasingly well founded. Effectively one could speak of a lex arbitralis materialis which consists of transnational substantive rules,3 general principles of law and practice as generally expressed in the work of leading arbitration institution and international law firms. In addition such an emerging autonomous system is compatible with the rules of many of the major international arbitration institutions.4 Such a system can only work if it is predictable enough and if it is an accurate reflection of accepted practice (s). It will normally operate because of party autonomy and when widely acceptable it will have a significant role to play in trade facilitation. A possible disadvantage of such a system may be that it is culturally neutral or, when it expresses a legal culture this may not be universally acceptable. However, one can argue that to the extent that lawyers and law firms are ultimate users of this autonomous system, those who participate in major business dispute resolution share the same culture, irrespective of their place of work. Most of the issues above are discussed in Rules and Networks …

This article examines how higher courts in the Soviet Union adjudicated adoption contests after the Second World War. It argues that in the higher organs of the Soviet civil judiciary, justices acted in both the spirit and letter of the law, issuing rulings that were strikingly free of communist imperatives and that sincerely attempted to address the best interests of children. During the period from the end of the war until the fall of Khrushchev, these interests were defined as honoring biological connections whenever feasible, upholding adoptions when biological connections had been legally and justifiably severed, and keeping children in loving families. Not only does this suggest that we can speak of a genuine legal culture in some sectors of the Soviet judiciary, it also evinces the rejection of a revolutionary-era commitment to collectivized child raising.

FOR THE past decade, China's International Economic and Trade Arbitration Commission (‘CIETAC’ or the ‘Commission’), has been moving away from the Soviet arbitration model on which it was based1 towards rules and procedures in keeping with European and Norm American arbitration institutions. The steps in this evolution have included significant amendment of the CIETAC Rules in 1988 and again in 1994 as well as CIETAC's efforts to see that reports of some of its arbitrations are published. Perhaps most important, beginning in 1989 and again in 1994, CIETAC expanded its list of approved arbitrators to include over 80 non-PRC nationals from over 20 countries.2 In the autumn of 1995, CIETAC made another, albeit less public, advance in this development with case M94209 Laser Cutting Machine Contract Dispute Arbitration between the China National Technical Import and Export Corporation (‘China National’) and a United States exporter, Sida Corporation. The Sida arbitration3 was an important event in CIETAC's development as an international arbitration institution for two reasons. First, the Sida arbitration marked the first occasion when the Commission permitted a non-Chinese majority to sit on a CIETAC panel: W. Laurence Craig of the United States, Yuqing Zhang of the PRC and Ulf Franke of Sweden (the ‘Franke Tribunal’). By itself, this would make the case worthy of the attention of international arbitration practitioners and students of Chinese legal culture. But the Sida arbitration was important for a second reason, squarely confronting CIETAC's first non-Chinese tribunal with a basic issue of international arbitration: the res judicata effect of a prior arbitration award rendered against the same Chinese party. The CIETAC panel concluded that an award rendered a year earlier by a Swedish tribunal had made factual and legal determinations against China National which prevented consideration of China National's claims before CIETAC. …

Because of the contradictions inherent in a liberal democratic state, the environmental regulatory process often fails to protect citizens from corporate pollution. As a consequence, organizations have emerged in some contaminated communities to put pressure on the regulatory process. This paper examines the structural sources of the emergence of grass-roots environmental organizations. These organizations represent a new trend in the environmental movement, and are part of a broader historical process involving the evolution of the legal culture and the social control of corporate conduct in the United States.

The Law and Practice of International Commercial Arbitration by Alan Redfern MA (Cantab), FCh Arb, and Martin Hunter MA (Cantab), FCh Arb. Second edition. Published by Sweet and Maxwell, London (1991, xv and 527 pp., incl. Table of Contents, Cases, Awards, Arbitration Rules, Statutes, Codes and Treaties, Appendices, and Index ). Hardback £120. In dynamic terms English arbitrations can be placed in three groups. First there are domestic arbitrations which range from simple quality disputes to immensely complex construction and engineering disputes. Such arbitrations are almost invariably conducted in accordance with an adversarial procedure. Secondly there is a category of international arbitrations which are by and large conducted like domestic arbitrations. The most prominent examples are shipping, commodities and insurance disputes. Such arbitrations are usually constituted under London arbitration clauses contained in English or internationally used standard form contracts. In such arbitrations the arbitrators and the lawyers are invariably English. Not surprisingly English legal culture pervades such arbitrations. Traditionally the procedure is adversarial. This is a highly successful method of dispute resolution and that accounts for the fact that thousands of arbitration awards of this type are made in London each year. Nevertheless in dynamic terms these are essentially English arbitrations. The third category comprises classic international commercial arbitrations. Such arbitrations are multi-cultural. The arbitrators and lawyers will usually come from different countries. The procedure will not be modelled on the procedural rules of the place where the contract was made or the country where the arbitration is conducted. The flavour of the arbitration will be internationalist. And it is a truism to say that a lawyer who is too attached to the glories of his own national legal system, in its …

The publication of Cornish and Clark's Law and Society in England 1750-19501 came to me as something of a surprise. I had known for many years that it was partially completed, but supposed that it had achieved albatross status, and would either never appear at all, or be conveniently destroyed in some student orgy like De Zulueta's great and presumably mythical work on Roman Law.2 How wrong I was; here it is, six hundred and ninety pages of it, though sadly Geoffrey Clark died in 1972, and so never saw the execution of the plan which he and Professor Cornish conceived more than twenty years ago. Its publication is an important event for legal history, but even more so for legal education. There are a number of different ways in which the study of law can be approached. English legal education has long been dominated by the tradition of legal science, and still is, though the term itself has become unfashionable. Legal science provides a particular way of thinking and talking and writing and arguing about the law, or what may be called a model of law. This model is especially convenient for professional lawyers, whether practitioners or academics, for whom law's essential function is to provide guidance for them in their professional activities-advising clients, giving legal opinions, arguing cases, writing legal texts. Indeed it is very difficult to imagine how a professional legal culture could exist at all unless the theory of legal science was integral to it. Thus the convention which makes legal argument in courts as we know it possible at all is that there is an institution known as the law--one law throughout the jurisdiction-which is potentially capable of providing a correct solution to every conceivable problem which can be presented to the court. The task of opposing counsel is that of persuading the court that their view of what the law is, and how it applies to the facts of the case, is the correct one.