Courts and Comparative Law

Hardcover | August 30, 2015

EditorMads Andenas, Duncan Fairgrieve

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While the role of comparative law in the courts was previously only an exception, foreign sources are now increasingly becoming a source of law in regular use in supreme and constitutional courts. There is considerable variation between the practices of courts and the role of comparative law,and methods remain controversial. In the US, the issue has been one of intense public debate and it is still one of the major dividing issues in the discussion about the role of the courts. Contributing to the existing discussion of the use of comparative law in the courts, this book provides an inclusive, coherent, and practical analysis of the relevant law and jurisprudence in comparative law in the courts. It examines the consequences for court procedures and the form of judgments,as well as how foreign sources are drawn upon in private international law, European law, administrative law, and constitutional law as well as before general courts. The book also includes case studies of comparative law used in particular spheres of the law, such as tort law and consumer law.Written by practising judges and lawyers as well as leading academics, this book serves as a central reference point concerning the role of comparative law before the courts.

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While the role of comparative law in the courts was previously only an exception, foreign sources are now increasingly becoming a source of law in regular use in supreme and constitutional courts. There is considerable variation between the practices of courts and the role of comparative law,and methods remain controversial. In the US,...

Mads Andenas is Professor at the University of Oslo, Senior Research Fellow at the Institute of Advanced Legal Studies, School of Advanced Study, University of London, and Visiting Fellow at the Institute of European and Comparative Law, University of Oxford. He is the UN Special Rapporteur on Arbitrary Detention and the chair of the ...

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Format:HardcoverDimensions:768 pages, 9.69 × 6.73 × 0.98 inPublished:August 30, 2015Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0198735332

ISBN - 13:9780198735335

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Table of Contents

1. Mads Andenas and Duncan Fairgrieve: Introduction - Courts and Comparative Law: In Search of Common Language for Open Legal SystemsPart I: Conflicts and Comparisons2. Thomas Kadner Graziano: Is it Legitimate and Beneficial for Judges to Use Comparative Law?3. Geoffrey Samuel: Comparative Law and the Courts: What is Comparative and What is Law?4. Benedicte Fauvarque-Cosson: Foreign Law before the French Courts: The Conflicts of Law Perspective5. Richard Fentiman: Foreign Law in National Courts: A Common Law Perspective6. Guido Alpa: Foreign Law in International Legal PracticePart II: Comparative Law Within a European and International Law Context7. Paul Mahoney and Rachael Kondak: Common Ground: A Starting Point or Destination for Comparative Law Analysis by the European Court of Human Rights?8. Koen Lenaerts and Kathleen Gutman: Comparative Law and the Court of Justice of the European Union: Interlocking Legal Orders Revisted9. Ermanno Calzolaio: National Judges and Strasbourg Case Law: Comparative Reflections About the Italian Experience10. Haris Tagaras: Comparative Law and the European Union Civil Service Tribunal11. Martin Gelter and Mathias Siems: Networks, Dialogue, or One-Way Traffic? An Empirical Analysis of Cross-Citations Between Ten of Europe's Highest Courts12. Eirik Bjorge: Comparative Law and the Method of Law: Ascertainment of the International Court of JusticePart III: Comparative Law Before Administrative Courts13. Olivier Dutheillet de Lamothe: Comparative Law as an Essential Feature of French Public Law14. Aurelie Bretonneau, Samuel Dahan, Duncan Fairgrieve: Comparative Legal Methodology of the Conseil d'Etat: Towards an Innovative Judicial Process?15. Francois Lichere: The Use of Comparative Law Before the French Administrative Law Courts: Or the Triumph of Castles Over Pyramids16. Aldo Sandulli: The Use of Comparative Law Before the Italian Public Law Courts17. Peter M. Huber and Andreas L. Paulus: Cooperation of Constitutional Courts in Europe - The Openness of the German Constitution to International, European, and Comparative Constitutional Law18. Ana Maria Guerra Martins and Miguel Prata Roque: Judicial Dialogue in a Multilevel Constitutional Network: The Role of the Portuguese Constitutional Court19. Lucio Pegoraro: Judges and Professors: the Influence of Foreign Scholarship on Constitutional Courts' Decisions20. Christa Rautenbach: South Africa: Teaching an 'Old Dog' New Tricks? An Empirical Study of the Use of Foreign Precedents by the South African Constitutional Court (1995-2010)21. Gianluca Gentili: Enhancing Constitutional Self-Understanding through Comparative Law: An Empirical Study of the Use of Foreign Case Law by the Supreme Court of Canada (1982-2013)22. Elaine Mak: Comparative Law Before the Supreme Courts of the UK and the Netherlands: An Empirical and Comparative Analysis23. Judith Resnik: Constructing the 'Foreign': American Law's Relationship to Non-Domestic Sources24. Guy Canivet: The Use of Comparative Law Before the French Private Law Courts25. Alexis Albarian: The Use of Comparative Law Before the French Cour de Cassation : The View From Academia26. Annalisa Aschieri: Italian Courts and Comparative Law27. Martha Minow: The Controversial Status of International and Comparative Law in the United States28. Jeremy Waldron: Foreign Law and the Modern Ius Gentium29. Marta Requejo Isidro and Marta Otero Crespo: Comparative Law Before the Spanish Private Law Courts in the XXI Century30. H. Patrick Glenn: Comparative Legal Reasoning and the Courts: A View from the Americas31. Hannes Unberath and Astrid Stadler: Comparative Law in the German Courts32. Kerstin Steiner: Comparative Law in the Syariah Courts: A Case Study of Singapore, Malaysia, and BruneiPart VI: Using Comparative Law: Case Studies33. Bernard Rabatel and Olivier Deparis: Liaison Magistrates: Their Role in International Judicial Cooperation and Comparative Law34. Geraint Howells and Jonathon Watson: Comparative Law in Consumer Litigation35. Romain M. Lorentz: The Use of Comparative Law by Courts in Birth-Related Tort Cases36. His Honour Judge Michael Brooke QC and Ian Forrester Q.C: The Use of Comparative Law in A and Others v National Blood Authority37. Erdem Buyuksagis: What Europeans Can Learn from an Untold Story of Transjudicial Communication: The Swiss-Turkish Experience38. Galateia Kalouta: DCFR in the Courts: The Remaking of Comparative Law