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  Privatizing the Adjudication of International Commercial Disputes: The Relevance of Organizational Form

  Kevin E. Davis

  What role should for-profit organizations play in governing commercial transactions? Recent scholarship on the privatization of commercial law has advocated expanding the role of for-profits. This essay tests the merits of that proposal in a context where the case for relying on for-profits seem particularly strong, namely the adjudication of international commercial disputes. Both theory and evidence suggest that there is a role for providers of dispute resolution services that take a variety of organizational forms, including for-profits, not-for-profits, international organizations and various kinds of hybrid organizations.

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  The Financial War on Terrorism

  Kevin E. Davis

  Preventing acts of terrorism remains one of the major tasks of domestic governments and regional and international organisations. Terrorism transcends borders, so anti-terrorism law must cross the boundaries of domestic, regional and international law. It also crosses traditional disciplinary boundaries between administrative, constitutional, criminal, financial, immigration, international and military law, as well as the law of war. This second edition provides a comprehensive resource on how domestic, regional and international responses to terrorism have developed since 2001. Chapters that focus on a particular country or region in the Americas, Europe, Africa and Asia are complemented by overarching thematic chapters that take a comparative approach to particular aspects of anti-terrorism law and policy.

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  Introduction: Global Governance by Indicators

  Kevin E. Davis, Benedict Kingsbury, and Sally Engle Merry

  This introductory chapter considers the increase of use and production of indicators in global governance. It first identifies the primary characteristics of indicators and then studies the features of governance and global governance. The next section presents a number of hypotheses regarding the implications of, and the reasons for, the use of indicators in global governance. This chapter also highlights several important insights that are presented in the following chapters and presents an overview of the book.

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  Casebooks, Learning Theory, and the Need to Manage Uncertainty

  Peggy C. Davis

  During the coming decades, the digital revolution that has transformed so much of our world will transform legal education as well. The digital production and distribution of course materials will powerfully affect both the content and the way materials are used in the classroom and library. This collection of essays by leading legal scholars in various fields explores three aspects of this coming transformation. The first set of essays discusses the way digital materials will be created and how they will change concepts of authorship as well as methods of production and distribution. The second set explores the impact of digital materials on law school classrooms and law libraries and the third set considers the potential transformation of the curriculum that the materials are likely to produce. Taken together, these essays provide a guide to momentous changes that every legal teacher and scholar needs to understand.

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  The ECJ and the International Legal Order: A Re-Evaluation

  Gráinne de Búrca

  The central role of the European Court of Justice in the process of ‘constitutionalizing’ EU law, whereby the Court has deemed certain provisions of EU law to be an integral and directly enforceable part of the law of the Member States, has long generated animated debate amongst EU law scholars. One part of this story which has not always attracted the same degree of attention is the way in which the Court of Justice extended aspects of its constitutionalization strategy to international legal norms. The relative paucity of EU Treaty provisions governing the status and effect of international law in the new European Communities at the time left considerable room for the Court to shape the answer to these questions. In some of its early case-law, the ECJ (European Court of Justice) adopted what has been called an ‘automatic incorporation’ approach to international agreements, deeming them to be part of the EU legal order and their provisions to be enforceable in domestic and EU courts at the suit of individuals. In this way one of the most important sources of international law—international treaties—were from a relatively early stage treated by the Court as a presumptively integral part of the new European legal order. Even if the dimension of this case-law which generated the most extensive commentary was that which subsequently departed from the basic automatic-incorporation approach, namely the Court’s decision to rule out the direct judicial enforceability of the GATT (General Agreement on Tariffs and Trade) and WTO (World Trade Organization) agreements, the general approach of the ECJ to international treaties was to treat them as fully part of the EU legal order and judicially enforceable at the suit of litigants. Further, this embrace of treaties as a central part of the EU legal order was accompanied by what seemed to be a fairly open approach to customary international law as part of EU law. By developing and using a range of doctrinal devices such as the principle of consistent interpretation and the treatment of international legal principles as part of the general principles of EU law, the ECJ exhibited an attitude of notable openness towards international law. In all, its approach to international legal obligations appeared to be one of engagement and loyalty, with the Court positioned as an agent to ensure compliance on the part of the EU and its Member States with the EU’s international obligations. This picture of the ECJ as a faithful enforcer of international legal obligations meshed well with the more general self-image promoted by the EU of an organization devoted to the international rule of law, whose international profile was defined in significant part by this distinctive commitment to international law and institutions.

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  Introduction

  Gráinne de Búrca and Joseph H. H. Weiler

  The issue of constitutional authority, and more particularly the plurality of claims to legal and constitutional authority, has been a dominant theme of European Union legal scholarship in recent years. The resonance of the topic is evident in many of the major EU developments of the past decade: the momentous eastwards enlargement; the gambit of the unratified Constitutional Treaty; the growing number of national constitutional court challenges to EU authority claims; the likely EU accession to the European Convention on Human Rights; and finally the rulings of the European Court of Justice on the relationship of EU law to the international legal order. When we were approached by John Haslam, editor at Cambridge University Press, with the suggestion that we put together a book of essays on the constitutional law of the EU, we embraced the opportunity he offered to invite a small number of the leading scholars in the field to write an in-depth essay on this compelling theme. The book is our second collaborative project, coming ten years after the publication of our first co-edited volume on the European Court of Justice.

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  Preface

  Norman Dorsen

  This short and affecting book captures an important slice of the Gay rights movement that is in danger of being lost to history. The 1969 “riot” at the Stonewall Inn was a turning point. Although I did not see the Stonewall happenings, they were the talk of Greenwich Villagers both Gay and straight, and they permanently changed the sense of self of Gay people, especially younger ones. But it is hardly known—except by a few scholars and those who lived through the events—that in 1980 and 1981 a small group of determined persons in Minneapolis fought, and eventually won, the right to hold a Gay pride block party on the city’s leading thoroughfare over the opposition of almost the entire Minneapolis political establishment.

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  Foreword

  Rochelle C. Dreyfuss

  Because they interfere with creativity in the name of promoting creativity, intellectual property rights are perennially puzzling. But no law is as mystifying as the legal doctrines that recognise exclusive rights in brand names and celebrity reputations. Copyrights and patents protect finite advances – a book, a song, an invention—that are directly attributable to a particular innovator or team. The rights endure for limited periods of time. They can be critical to protecting those who invest in innovation from free riders. Trade mark law is somewhat more problematic. Protection lasts indefinitely. The audience can play as important a role as the producer in vesting marks with meaning and value. But classically, trade mark law has a benchmark: it is triggered when unauthorised use creates a likelihood of consumer confusion. Furthermore, recognizing trade mark protection serves clear public purposes: the exclusive right to a mark lowers consumer search costs and gives producers incentives to maintain quality. The protection of brands and reputations is quite different. It is fraught with all of the problems of trade mark law—value resides partly in the eyes of the beholder and the right can endure forever. Here, however, the nature and boundaries of the advance are unclear and the social value of the protection is ambiguous. The underlying rationale appears, as in trade marks, to depend on a search—cost idea—the notion that if the consumer likes the way that X does A, then she will be equally pleased with the way it does B. But why should Calvin Klein’s underwear be as nice as its outerwear? What does Ashton Kutcher really know about cameras? Is George Clooney genuinely a specialist in watches and cars; coffee and liquor? Isn’t it misleading to imply that the competence of a company or a celebrity transcends the core business in which that company or celebrity is engaged? Instead of dispelling consumer confusion, these rights appear aimed at fomenting it. There are other problems as well. Celebrities do not need incentives to invest in their own reputations. Brand protection can stifle competition, for the stronger the carry-over value of an old mark in a new market, the harder it is for other enterprises to enter that market and compete. More disturbingly, the criminal docket suggests that when some people say they’d ‘kill’ to own a particular brand, they come close to really meaning it. Nor do rights over brands and reputation have obvious jurisprudential roots. They borrow from the theories that animate the laws of trade mark, unfair competition, privacy, defamation and copyright. Or, as suggested in this volume, perhaps the impulse to protect derives from morality, religion, romance or magic. Yet, clearly, branding is of growing significance to business enterprises. It has given birth to its own industry, bred a cadre of specialists, and convinced many a court. The strategy is spreading to all parts of the globe; it’s been taken up by those who wish to protect the images of foodstuffs, artisanal products and traditional knowledge. Hence, the importance of this book. Since reputations transcend national boundaries, global harmonisation is highly desirable. But before international rules can be developed, the scope of the right needs more precise delineation. Its justifications need to be identified and examined critically. The costs and benefits of protecting brands and celebrity reputations must be compared in earnest and the contours of the right must be tailored to balance the needs of commerce against the social costs of privatising new swaths of the knowledge ecosystem. This book takes an interdisciplinary approach to these questions, collecting the knowledge of experts in business, economics, law and cultural studies; professors and practitioners; doctrinalists, theoreticians, historians and empiricists. Most intriguingly, it focuses on the Asia Pacific, a region of increasing commercial importance, but whose law is largely unknown elsewhere; a region where legal doctrine is influenced by the United States and Europe, but leavened by such diverse sources as Islam, Confucius and traditional practice. These materials examine branding and reputation law in places where it is emerging (Indonesia, Malaysia, Hong Kong, Singapore) in light of the experience of countries where it is of longer standing while still evolving (the United States, Australia, New Zealand). The book illuminates the range of policy choices available. As such, it is sure to influence the shape of the ultimate transnational regime.

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  Common Law Liability for Fire: A Conceptual, Historical, and Economic Analysis

  Richard A. Epstein

  The tort law governing fire is a peculiar amalgam that adjusts the general principles of tort law to the particular context of fire. This chapter examines the different principles of tort law as they apply to both wildfires and fires set by human agents.In particular, it looks at how, in this context, the law treats such perennial issues as the act/omission distinction, the role of privilege for private and public actors,the application of principles of vicarious liability, the choice between negligence and strict liability, and the laws of causation and affirmative defenses. The possibility of huge consequences from small antecedents is one of the great challenges in this area. Yet at the same time, the universal recognition of the danger of fire has led to the development of a body of common law rules that, although rough around the edges, is reasonably adapted to the challenges of both earlier and modern times.

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  Playing By Different Rules?: Property Rights in Land and Water

  Richard A. Epstein

  One of the ancient philosophical conceits about the nature of the universe was that it was divided into three separate elements: air, water, and land. As an explanation of elementary particles, this antique tripartite division is an arid intellectual curiosity. But, ironically, in dealing with the organization of property rights systems, this early classification system is right on the mark. The focus of this chapter is not primarily air rights of all kinds and descriptions, although the topic does come up. Instead, it deals systematically with the differences and similarities that arise in forming property rights systems in both land and water. One point common to the two types of systems is that each works in two dimensions. One dimension asks about the assignment of property rights to two or more private parties. The second dimension deals with the relationship of all private right holders, either individually or in groups, to the state. Viewed globally, these cases are concerned with the taking or regulation of land, including land use, which the government may do only if it provides an owner with just compensation for any property interest that is eliminated or reduced. The usual prism through which this topic is raised in the United States is the takings clause, “[N]or shall private property be taken for public use, without just compensation” (U.S. Constitution, Fifth Amendment), and the allied doctrines that develop under analogous state constitutional provisions. On the first issue, dealing with private disputes, the uniform rule with respect to both land and water starts with an assumption of parity of entitlements among all participants in the original position. Although the remedial side of the question will not be stressed here, the implicit assumption is that both damages and injunctions are available to provide redress for past grievances and protection against future ones, all in an effort to steer the realignment of property rights through voluntary transactions. In contrast, that assumption (to some extent) cannot be fully realized in any takings context because, by definition, the government exercises a set of unique powers in relations requirement is satisfied, as it typically is, injunctive relief is off the table so long as the government is prepared to pay just compensation. These second-order questions are again put to one side. This chapter addresses the key challenge of outlining the main features of a private and public system of law with respect to both land and water. The feel, texture, and characteristics of these two resources differ in ways that tend to create large differences in the legal regimes that govern them. The dividing line between land and water has huge staying power in this area, but it is by no means the sole relevant categorical division. As Daniel Cole and Elinor Ostrom (2010) have stressed (see chapter 2 of this volume), differences in property rights within each of these broad categories are at least as important as the similarities. A sensible conception of the much-criticized notion of natural law helps inform analysis of the many doctrines of private and public law that are discussed in this chapter.

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  The Deserved Demise of EFCA (and Why the NLRA Should Share Its Fate)

  Richard A. Epstein

  For the past several years, Democratic majorities in both houses of Congress have championed the passage of the Employee Free Choice Act (EFCA). Some defenders of the proposed legislation did not see it as a sea change. But that position was belied by the vast amounts of energy and money that the dominant players on both sides invested in the battle. Those expenditures are more consistent with the view that passage of the bill would have revolutionized management and labor relations over at least some substantial portion of the labor force, most likely in low-paying jobs in the service industries. When Barack Obama was elected President in November 2008, the odds were good that EFCA would be enacted quickly into law. Obama was elected with strong majorities in both houses of Congress, and the public had soured on American business and had accepted much of the populist critique that attributed the great financial crisis in the fall of 2008 to corporate greed and the nonstop financial machinations on Wall Street. Relationships between the administration and organized labor were close, and the two groups showed every sign of working effectively together on a powerful Congressional campaign to turn the bill into law. Unlike the then pending health care legislation that introduced extensive changes throughout the health care system, EFCA is a short bill whose implementation does not require levying any new taxes or creating any major new administrative agency. Intellectually and emotionally, EFCA fed off the widespread and determined perception within pro-labor circles, both those in practice and those in the academy, that the feeble union remedies available under the National Labor Relations Act (NLRA)—usually holding new elections or issuing bargaining orders—leave employers who consciously breach the statute better off than they would have been if they had complied with the law. Time after time, pro-union scholars have identified the NLRA’s weak remedial side as the major explanation for the rapid decline of labor union membership in the private sector. Those numbers had leveled off in 2006 and 2007, only to plummet again in the post-2008 meltdown to a new low of 6.9 percent of the private workforce today (BLS, 2010). That figure is down from a high of about 35 percent in 1954. Indeed, so great is the transformation in union membership that today there are more members of public sector unions than private sector unions, by a respectable margin of 7.9 million to 7.4 million workers (id.).

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  The Irrelevance of the Hand Formula: How Institutional Arrangements Structure Tort Liability

  Richard A. Epstein

  On October 1, 2012, Professor Boudewijn Bouckaert was admitted to emeritus status. This is a great opportunity to pay tribute to the celebrated one and to thank him for the enthusiasm and inspiration with which he has inspired us over many years. This liber amicorum, with almost thirty contributions on various themes, is a reflection of the intellectual depth and versatility of the celebrated oeuvre. Boudewijn Bouckaert studied law and philosophy at Ghent University. In 1971 he obtained his doctorate in law and his candidacy in philosophy at the University of Ghent. He subsequently became an assistant at the General Legal Theory Seminar with Prof. Dr. Willy Calewaert. In 1981 he obtained the Higher Education aggregate with a thesis on the Exegetical School. In 1982 he was appointed lecturer and in 1991 full professor. His academic career can certainly be described as impressive. He is the author of more than twenty books and many more articles. His research is mainly focused on legal theory, the economic analysis of property rights and spatial planning. His contributions have clearly left their mark on the development in these areas.

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  A Return to Governance in the Law of the Workplace

  Cynthia Estlund

  This article focuses on the shift from old governance to new governance in the workplace. It traces the history of the rise and fall of old governance, and examines the role that the participatory mechanisms which developed under old governance play in the new one. The article argues that the institutions of employee participation which were central to twentieth-century labour relations regimes will also play crucial roles in the development of new governance strategies for workplace regulation. It furthermore discusses the rise of regulated self-regulation in the workplace and the forms of participation in workplace governance.

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  Enforcement of Private Transnational Labor Regulation: A New Frontier in the Anti-Sweatshop Movement?

  Cynthia Estlund

  Anti-sweatshop activists, now veterans in the corporate social responsibility (CSR) movement, have been working for decades to improve wages and working conditions in the factories of the developing world, where most of the world’s clothing, toys, and electronics are now produced. While public law, domestic and international, plays an important role in those efforts, its focus is on developing mechanisms of private, voluntary regulation by the large branded multinational corporations (MNCs or ‘lead firms’) at the top of the supply chains that link poor workers in the developing world to affluent consumers in the developed world. Critics of those efforts abound. Some see a misguided assault on the salutary fl ow of desperately needed capital to impoverished people and communities. Others, including many trade unionists, view CSR as meaningless at best and harmful at worst in its tendency to divert energy and attention from the more useful projects of strengthening public enforcement of labor standards and supporting independent trade unions. In the meantime, many within the CSR community struggle daily to push corporations along the path from promise to performance, and from the bare commitment to promote decent labor standards among suppliers to increasingly ambitious mechanisms for realizing those standards. Environmental and human rights activists are traveling that same path, and are confronting similar issues in promoting effective private transnational social regulation. The topic at hand is ‘enforcement’. Enforcement has many dimensions, even in the context of this one particular kind of private transnational regulation. Much of the history of the anti-sweatshop movement has been about one kind of enforcement: pressing firms to improve enforcement of labor codes of conduct against their suppliers by instituting better monitoring procedures, training, and other procedures to improve supplier compliance. On the horizon is another more challenging set of enforcement issues: the ability of workers or their advocates to enforce code provisions against suppliers or lead firms. Legal enforcement of CSR commitments by or on behalf of the workers they are intended to benefit might be the next frontier in CSR. To get the measure of the challenge facing demands for enforcement, it will be helpful to look back at the history of the struggle to induce lead firms to enact and enforce private, voluntary codes of conduct against suppliers. Through that history runs a recurring dilemma that follows from the voluntariness that is a defining feature of private transnational social regulation. Regulated entities must be induced to submit to private regulation. Stakeholders’ efforts to ratchet up the strength and efficacy of regulatory regimes are thus in tension with their efforts to induce voluntary submission to those regimes. That tension is bound to constrain efforts to secure enforceable commitments in this as in other arenas of private transnational social regulation.

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  Why Workers Still Need a Collective Voice in the Era of Norms and Mandates

  Cynthia Estlund

  The drastic decline of union representation in the United States has opened up a large and by now familiar “representation gap” in the workplace—a gap between “what workers want,” to cite Freeman and Rogers’ (1999) important book on the question, and what they have by way of voice at work. But what workers want does not necessarily command the attention of policymakers. Is workers’ desire for greater voice at work any more compelling than their desire for higher wages, paid vacations, or any number of terms and conditions of employment that are left almost entirely to the tender mercies of labor markets and individual bargaining? On some accounts, workers no longer need collective representation (whether or not they want it) because their interests are adequately protected by a combination of legally enforceable mandates and self-enforcing norms. I will argue in this chapter that these accounts are wrong and workers are right: most workers not only want but need some form of collective representation in order to enforce the mix of legal mandates and informal norms by which they are currently governed at work. The existing patchwork of employment mandates has indeed supplied what some commentators view as a kind of union substitute. But minimum standards are often quite minimal, and are underenforced in many workplaces. The default regime of individual contract thus continues to exert a powerful gravitational pull on actual wages and working conditions both above and below the mandatory floor. The nature of the individual employment contract in the non-union sector has also changed since the 1930s, and on some views has created a different kind of union substitute: a regime of non-legally enforceable yet mostly self-enforcing norms that have displaced the arbitrary and harsh labor management practices that drove many workers in the past to demand union representation. But the informal enforcement of workplace norms depends on “reputational sanctions” that are certain to vary across employers and across different classes of workers, leaving many workers vulnerable to unfair and opportunistic employer practices. So workers not only still want collective representation at work; they need collective representation to enforce the regime of mandates and norms by which most workers are actually governed at work. But both the nature of the collective representation that workers need and the path by which they might achieve it differ for workers at the top and the bottom of the labor market.

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  Introduction: The Economics of Labor and Employment Law

  Cynthia Estlund and Michael L. Wachter

  The law governing the employment relationship and labor relations is a natural field for the application of economic analysis. At bottom, labor and employment law governs voluntary contractual relations within labor markets and firms. That law is often bound to affect both the price and the cost of labor—whether or not it aims to do so—and thus to affect both the supply of and demand for labor. The price, cost, supply and demand for labor are all crucially important for firms, workers and the society at large. So it might seem inevitable and uncontroversial that economic analysis would make up a major part of legal scholarship in this area. Although the integration of these two disciplines may have been inevitable, it was hardly uncontroversial. The entry and gradual integration of neoclassical economic analysis into the field of labor and employment law, beginning some 30 years ago, looked very different from the perspective of the two disciplines—law and economics. One reason for early controversy was that the two disciplines were far more distinct 30 years ago than in today’s cross-disciplinary era. The first foray of modern economic analysis into labor law came from a particular wing of economics—one that was far more sanguine about the competitiveness of labor markets, and more critical of the body of labor and employment law that had evolved since the New Deal, than the median labor economist, not to mention the majority of labor law professors. The latter were especially disposed to stress the differences between labor markets and other markets.

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  The Forum for Adjudication of Employment Disputes

  Samuel Estreicher and Zev J. Eigen

  This chapter focuses on the appropriate design of the forum for adjudication of employment disputes. By the term “adjudication,” we refer to the resolution of “rights” disputes—disputes over the application of a contract or the application of a statutory or regulatory rule or policy to a particular situation. We are not referring to “interests” disputes—disputes over the substantive content of an initial labor-management contract or renewal agreement, or the analog in a non-unionized setting, such as the construction of rules to govern the workplace. In considering the design question, we assume that all involved actors (employees, employers, unions, etc.) retain whatever endowments they currently possess in terms of intelligence, energy, income, occupational status, access to resources, union representation, and statutory and contractual rights. Holding these endowments constant, we ask what institutional arrangements for adjudicating rights disputes would do the best job of resolving those disputes in a fair, efficient manner for workers, managers and the public generally. The fundamental problem of the current system is that the overwhelming majority of U.S. workers lack access to a fair, efficient forum for adjudicating their disputes with their employers. They have, in a theoretical sense, a right of access to a court system that is, properly viewed as, the envy of the world, but the costs of access to the system—not so much filing fees, but access to competent counsel—are prohibitive (Estreicher, 2005). Workers with viable claims are often left with the unpalatable choice of either filing a complaint with an administrative agency poorly resourced to handle a large volume of claims, representing themselves in court, or simply giving up. Class actions, an ingenious, lawyer-driven device of the equity courts that has done much good, are also poorly designed for fact-intensive, day-to-day disputes of employees who complain of an improper termination of employment or other adverse personnel decision. No other country in the developed world relies on ordinary civil courts for employment disputes; rather, they use some form of employment tribunal with limited rights of appeal to the courts (Estreicher, 2008).

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  Legislation, Planning, and Deliberation

  John A. Ferejohn

  Any government must protect its subjects and allow them a chance to live tolerable lives. These tasks require the occasional threat of force to coordinate the actions of its citizens and officials around policies to secure these effects. A liberal democratic government asks more of itself, insisting that the people play some role in directing (possibly coercive) state policies and providing legal and political space for people to take private actions to determine the course of their own lives. In a modern (representative) democracy, the legislature normally directs and regulates coercive state power by making laws and directing their enforcement, and anyone subject to legal force is entitled to a justification, in a suitable forum, as to why her interests are to be subordinated to those of others or the public interest. This justificatory burden requires that a statute be seen as intentionally aimed at furthering some genuine public interest.

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  Rising Inequality and American Politics

  John A. Ferejohn

  Income inequality has increased sharply in the United States since the early 1970s, and there are no signs of any reversal in this trend even during the recent recession. There is dispute about the extent of this increase, whether it is temporary (and even about whether it is real), and why it has occurred. Without being able to settle any of these disputes, it seems likely that political factors have played some kind of a role—possibly only a permissive one—and that we can choose policies that would limit the extent and nature of the inequality if we choose to. But, our capacity to make such choices is fragile and could be threatened by growing inequality itself. It has often been thought that extreme inequality is dangerous to popular rule. Aristotle argued that should the poor or the rich monopolize power they would inevitably govern in their own (class) interest. He thought it wise, therefore, for a popular government to restrict the franchise in order to assure that authority will be exercised by the middle class—those between the poor and the rich—because their interests are a kind of compromise or balance between them. But, if the middle class is too small to rule effectively, he thought it would be desirable to devise other means of inducing moderate rule—specifically, institutions of mixed government (which he called “politeia”)—to check the tendencies of either the rich or poor to corrupt the state.

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  Constitutional Adjudication, Italian Style

  John A. Ferejohn and Pasquale Pasquino

  We have written elsewhere of the rise of constitutional adjudication in the postwar period, especially in Europe. We emphasized in our previous work that the new institutions of constitutional adjudication were nearly always created following periods of authoritarian rule: initially in Germany and Italy following the World War II, then in Greece, Spain, and Portugal following the collapse of authoritarian regimes, and again in Eastern Europe and post-Soviet Russia after the fall of the communist regimes in those countries. We distinguished among three ideal typical regimes, which we called the Italian, German, and French models. Of course, our discussion of the French case emphasized that it was special both because it was not an authoritarian regime prior to the establishment of the Fifth Republic and because the French Conseil Constitutionnel was not really established as a constitutional court, although it has effectively become one after the constitution was amended in 1974. Nevertheless, we included this special case because it was established in a new constitution and because as of this writing, it plainly has demonstrated its potential to develop into a genuine instrument for constitutional adjudication.

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  CISG and OHADA Sales Law: Or the Relationship Between Global and Regional Sales Law

  Franco Ferrari

  As one can easily gather from the title of this paper, this paper does not purport to compare the substantive provisions of the United Nations Convention on Contracts for the International Sale of Goods, (hereinafter, the “CISG”), with those of the new OHADA Act relating to General Commercial Law adopted on 15 December 2010 (hereinafter, the “OHADA Act”). Rather, this paper will focus on a more general question that is triggered by regional unification efforts, such as those undertaken by OHADA, that touch upon issues dealt with by the CISG, namely that of whether such regional unification efforts can at all be justified in light of the CISG and its supposedly universal reach, which seems to render any regional unification effort superfluous. As this paper will show, despite the CISG’s supposedly universal reach which seems to preclude regional unification efforts from being relevant at all, there is still (a lot of) room for regional unification efforts. The most obvious reason is that, despite the CISG’s success and its supposedly universal reach, the CISG does not really constitute a “universal” or “global” law, as the CISG, like any other uniform law convention, is not in force in every country in the world. As a consequence, the non-contracting States to the CISG can undertake regional unification efforts without having to be wary of violating a treaty obligation arising from being contracting States to the CISG.

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  Factoring

  Franco Ferrari

  The development of European private law by means of legislative instruments and regulatory mechanisms of the European Union generally occurs on the basis of decisions serving the short-term requirements of political agendas. There has been no overarching concept and this has resulted in a body of rules that is not easy to penetrate. In response to these developments, in 2009 the Max Planck Institute for Comparative and International Private Law published the Handwörterbuch des Europäischen Privatrechts, which has now been published in English as the Max Planck Encyclopedia of European Private Law. It is not just a translation but an independent volume customised for the different legal backgrounds of an international readership. In line with the encyclopaedic format, key terms are ordered alphabetically and enhanced with cross references. The key terms are also listed in thematic and subject indices and there is a comprehensive bibliography. Due to the complexity of the material, this is not just a mere dictionary. Instead, with systematic key terms and the inclusion of inaccessible specialised literature, this Handbook is intended to create a solid foundation for a subsequent systematic understanding of European private law.

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  Leasing

  Franco Ferrari

  The development of European private law by means of legislative instruments and regulatory mechanisms of the European Union generally occurs on the basis of decisions serving the short-term requirements of political agendas. There has been no overarching concept and this has resulted in a body of rules that is not easy to penetrate. In response to these developments, in 2009 the Max Planck Institute for Comparative and International Private Law published the Handwörterbuch des Europäischen Privatrechts, which has now been published in English as the Max Planck Encyclopedia of European Private Law. It is not just a translation but an independent volume customised for the different legal backgrounds of an international readership. In line with the encyclopaedic format, key terms are ordered alphabetically and enhanced with cross references. The key terms are also listed in thematic and subject indices and there is a comprehensive bibliography. Due to the complexity of the material, this is not just a mere dictionary. Instead, with systematic key terms and the inclusion of inaccessible specialised literature, this Handbook is intended to create a solid foundation for a subsequent systematic understanding of European private law.

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  Offer and Acceptance Inter Absentes

  Franco Ferrari

  Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries' legal systems and, as a whole, presents an overview of the current state of affairs.

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  PIL and CISG: Friends or Foes?

  Franco Ferrari

  Papers delivered at a conference held in Istanbul on April 7, 2012, by the Istanbul Kemerburgaz University School of Law.