Comparative Law Notes 1

Comparative Law Notes

LAW 6250
Professor Pedro A. Malavet

Class Notes Part One

I. Course Overview

First Session: an Overview of the Course

My Rules
My idiosyncrasies
Mandatory Attendance, Daily Roll
Class Participation is at least 20% of the final grade
Practical Project
Exam

Exam
Take Home
3000 word limit
To be turned in on or before the date set for the exam.

“Comparative Law”
Comparative Law is not a body of rules and principles. Primarily, it is a method, a way of looking at legal problems, legal institutions, and entire legal systems. By the use of that method it becomes possible to make observations, and to gain insights, which would be denied to one who limits his study to the law of a single country.

“Comparative Law” (2)
Neither the comparative method, nor the insights gained through its use, can be said to constitute a body of binding norms, i.e. of “law” in the sense in which we speak of “the law” of Torts or “the law” of Decedents’ Estates. Strictly speaking, therefore, the term Comparative Law is a misnomer. It would be more appropriate to speak of Comparison of Laws and Legal Systems. . . .

US Competitive Advantage
Worldwide legal services revenue increased from $363.6 billion in 2003 to $458.2 billion in 2007.
U.S. legal service firms account for 54 percent of global revenue in 2007 and 75 of the top 100 global firms ranked by revenue.”
In 2007, the U.S. enjoyed a trade surplus in legal services of $4.9 Billion

Objectives, Definitions and Methods
The objective of any law study is of course dependent on its purpose and desired results, but the comparative method is dynamic enough to be adapted to many purposes by a thoughtful law student or practitioner.

Method
How should you approach your research?
What are the possible pitfalls?
Legal System
operating set of legal institutions, procedures, and rules. In this sense there are one federal and fifty state legal systems in the United States
Legal Tradition
set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective

Special Hazards of Comparative Law
distinction between law and legal systems, and between official legal systems and actual practices within the official legal system and the possible existence of informal legal systems

Language “Awkwardness”
It may seem odd or awkward, but much of the language in the materials uses terms that are common in the international language of law, especially because of the legal institutions and concepts that are common to the civil law tradition.

Comparative Method in United States Cases
Eastern Airlines v. Floyd, treaty regimes
in Florida, Louisiana and many parts of the U.S. Southwest, there are old Spanish and French legal rules that are still in ef-fect, and that require comparative methodology, as opposed to the normative U.S. approach, to understand and litigate them properly

Legal Education in the Civil Law World
Mostly undergraduate
Often followed by specialized training
Compulsory bar membership

Legal Professionalism in the Civil Law World
More government-defined specialties
Specific entry requirements and exams
More government employment

The Magical History Tour
You know U.S. history, you need to understand “Civil Law” history
What is Roman Law?
What is Canon Law?
Do these “laws” influence modern law?

Relevant Historical Ages
1) Roman civil law; _2) Canon Law;_ 3) Commercial Law; 4) The Revolution;_ and 5) Legal Science
I add “Modern Constitutionalism”

Graphic: Europe in Roman Times
Graphic: Legal Sources during different periods of the Roman Empire
Graphic: Bayeaux Tapestry:The Death of Harold II

Contemporary National Legal Systems
Post-WWII phenomena
“Separation of Powers”?
“Judicial Review”
Judicial Specialization”

Graphic: German Courts
Graphic: French Courts
Graphic: Spanish Courts

Constitutionality Review
Not necessarily judicial
Constitutional Courts vs. Council
Specified jurisdiction and authority

Graphic: Spanish Empirec. 1800
Graphic: Europe Today

B. Examination Expectations

Examination Expectations
What you must be able to do at the end of the course

Exam Instructions
1) Show that you have a command of the material we cov-ered in class that is pertinent to your answer. To this end, provide references to our casebook, web postings, and to your notes of our class discussion. …

Exam Instructions
2) Appropriately identify your sources in your an-swer. …

Plagiarism is a serious violation of the student code of conduct
What is Plagiarism?
Plagiarism is defined by the Honor Council document as "the act of passing off as one's own the ideas or writings of another." In the Appendix to the Honor Council pamphlet called "Acknowledging the Work of Others" (which is used by permission of Cornell University), three simple conventions are presented for when you must provide a reference:

Plagiarism Continued
If you use someone else's ideas, you should cite the source.
If the way in which you are using the source is unclear, make it clear.
If you received specific help from someone in writing the paper, acknowledge it
http://gervaseprograms.georgetown.edu/honor/system/53377.shtml

Exam Instructions
3) Show that you can identify analogous United States or Non-U.S. legal concepts and materials that are the proper subject of comparative analysis. This may require you to conduct some modest research outside our class materials. Please keep it simple. …

Exam Instructions
4) You are permitted to take one of two frames of refer-ence: (1) that of United States law student or (2) that of a non-U.S. student. However, you are limited to the class dis-cussion of the U.S., French and German constitutional sys-tems, in order to keep you focused on a reasonably narrow area that was covered in the class materials.

Instructions
5) Finally, you should discuss the factual or legal factors disclosed by your research in a thoughtful and original manner that shows your command of the material related to our course. This last part is especially important if you wish to earn a high grade. Remember the themes, perspec-tives and emphasis of our class discussions.

Question
Draft and explain an amendment to the Constitution of the United States that will govern the resolution of dis-putes regarding the constitutionality of legislation issued by the United States Congress. In structuring your amend-ment and its discussion, you should consider and address the French and German constitutional systems and contrast them to the current U.S. system. You must address the fol-lowing topics both in the language of the amendment and in your discussion of it:

Question
(1) What type of body should be responsible for giv-ing the final word on the constitutionality of executive, leg-islative or judicial action that is based on an act of con-gress?

Question
(2) What should be the number, qualifications, length of service and method of selection and appointment of members of this body?

Question
(3) Should the state and/or federal courts be al-lowed to determine the constitutionality of executive, legislative or judicial action that is based on an act of congress? If so, how? (e.g., the German Reference Procedure, or the U.S. “case and controversy” standard.)

Question
(4) How and when will matters be submitted to this body? (e.g., appeal from lower courts, reference procedure, citizen complaint, request for advisory opinion by those with special standing, like the President, the Speaker of the House, President of the Senate, any number of congress-men and senators, or equivalent state officials).

Question
(5) What will be the effect of the decisions of the constitutional review body when interpreting the Constitution of the United States? (Please consider three areas: (1) In the same case, as to courts and parties involved; (2) Within the judiciary generally as “precedent”; and (3) As to the other branches of government (legislative, executive and judiciary) at both the state and federal levels.

Question
Finally, your discussion should be critical. In particular, you must acknowledge comparative alternatives and explain why you selected a particular method or structure over the alternatives illuminated by our comparative law course.

III. Introduction to Comparative Law: The Comparative Method

Comparative Law
The University of Florida
Fredric G. Levin College of Law

Professor Pedro A. Malavet
Introduction to the Comparative Method

Notice requirement
ABA Model Rule 3.3, note 6, page 62
A lawyer shall not knowingly … fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

Duty to Disclose
Under [DR 7-106(B)(1)] an attorney has the duty to disclose legal authority in the "controlling jurisdiction" known to him which is "directly adverse to the position of his client and which is not disclosed by opposing counsel." One could argue that the forum is the "controlling jurisdiction," unless foreign law is invoked to displace it.

Duty to Disclose, 2
This, however, is an overly technical approach to the issue since the purpose of the requirement is to ensure that the court is fully informed of applicable law so that it can make a fair and accurate determination of the merits. The "controlling jurisdiction" is the jurisdiction which should control under the choice of law rules of the forum. In such a situation, then, a party should raise the possible applicability of foreign law whenever it is reasonably certain that his opponent will not do so.

Legal Tradition
The reader will observe that the term used is “legal tradition,” not “legal system.” The purpose is to distinguish between two quite different ideas. A legal system, as that term is here used, is an operating set of legal institutions, procedures, and rules. In this sense there are one federal and fifty state legal systems in the United States[ ] separate legal systems in each of the other nations, and still other distinct legal systems in such organizations as the European [Union] and the United Nations. In a world organized into sovereign states and organizations of states, there are as many legal systems as there are such states and organizations.

Legal Tradition
A legal tradition, as the term implies, is not a set of rules of law about contracts, corporations, and crimes, although such rules will almost always be in some sense a reflection of that tradition. Rather it is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective

What is Comparative Law?
Comparative law is by definition the study of foreign law.
It is comparison of law, not really a field of substantive law.
It is more often than not, descriptive. But, it can also be truly comparative.

Definition: The Comparative Method
. . . Comparative Law is not a body of rules and principles. Primarily, it is a method, a way of looking at legal problems, legal institutions, and entire legal systems. By the use of that method it becomes possible to make observations, and to gain insights, which would be denied to one who limits his study to the law of a single country.

The Comparative Method, 2
Neither the comparative method, nor the insights gained through its use, can be said to constitute a body of binding norms, i.e. of “law” in the sense in which we speak of “the law” of Torts or “the law” of Decedents’ Estates. Strictly speaking, therefore, the term Comparative Law is a misnomer. It would be more appropriate to speak of Comparison of Laws and Legal Systems. . . .
Rudolph B. Schlesinger, et al., Comparative Law 1 (5th ed. 1988).

Graphics:
Europe Today
Europe in Roman Times
The Fall of the Roman Empire
Europe, circa 900 a.d.
The Muslim Empires
Spain, 1510
Europe
Europe at the end of 18th Century
Napoleon’s Empire
WW II Europe (1)
WW II Europe (2)
Separation of Powers
The French Legal System
The German Legal System

C.1. Origins of Comparative Law,
Ancient, in many ways
Modern version dates to 19th Century and was centered in France
The abandonment of the old ius commune and the development of national legal systems made it a necessity.

Practical Objectives
to convey to the student “that modicum of understanding and of familiarity with concept and terminology which will make it possible for him really to grasp an opinion of local counsel” [quoting Professor Jessup], and,
to write an understandable letter asking for such opinion. In litigated cases, moreover, that modicum of understanding should enable the practitioner intelligently to choose as well as to examine and cross-examine the experts testifying as to the foreign law....

Objectives of Comparative Law
– Practical
– Sociological
– Political-Cultural
– Personal? Because it is entertaining“I have no other reason than that it pleases me to compare them.” (Applicable to both bricks and law. P. 25)

A. Practical,
Transnational law practice:
paying special attention to understanding the opinion of foreign counsel or
the needs of foreign or foreign-born clients
2) Understanding foreign law
For domestic use
For private foreign use
Because of public international law
3) Mortgage example, note 12, p.29-30

A. Practical,
3. International Unificiation or Harmonization of Law
In the US? Absolutely, e.g., NAFTA and WTO
Abroad: Essential to understanding the European Union and its member states
Harmonization in the EU

Note 5:
Article 3(h) of the Treaty of Rome establishes major goal of the Community (now the Union) as “the approximation of the laws of the Member States to the extent required for the proper functioning of the common market.”

“General principles of law”
art. 38(1)(c) of the Statute of the International Court of Justice directs the court to apply inter alia “the general principles of law recognized by civilized nations.”
art. 215 of the Treaty of Rome establishing the EEC provides that the noncontractual liability of the Community is to be governed by “the general principles common to the laws of the Member States.”

Practical Objectives4. Developing Policy
Mostly focusing on domestic legal reform
What works abroad that might work for us?

B. Sociological Objectives,
Sociological:
“Hence Comparative Law is the method by which the legal sociologist explores the world’s legal systems with a view to establishing general principles relating to the role of law in society.”
Generally referred to as “legal penetration” or “rule of law” projects and studies

C. Political/Cultural Objectives,
–Political-Cultural
International Understanding
What does specific legal language in a treaty mean? Do the signatories really understand what they agreeing to? Do they really agree at all?

2. Understanding a Culture
What is the role of law in a culture? Will I be able to enforce a contract? Keep the land I purchased?

C. Transnational Law Practice,
1) Better Service to US clients/Liability
2) Trade in Services Sector of the economy is large
3) “Bridging the Cultural Gap,”
“By the cultural gap I mean the tremendously important, yet sometimes hidden, barriers to international business and trade that are created by differing cultural, social, political, and economic systems.”
E.g., K, Language,

Law and Development Critique
Note 11: Watson on Rules Survival
Often, indeed, the rules of law are in conflict with the best interests and desires both of the ordinary citizens and the ruling elite. Legal rules, once created, live on. They are frequently remote from the experience and understanding of non-lawyers, and are kept in existence by factors such as the absence of effective machinery for radical change, by indifference, by juristic fascination with technicalities, and by lawyers’ self-interest.

Rules Survive, continue
Many, many rules endure for centuries with only minor modifications, both in their own land and abroad. The effect of this for the relationship between law and society is grossly underestimated. Theories of law and society, and of legal development, tend to focus on important innovations. This leads to the impression of a very close inherent relationship between law and the society in which it operates.

3. Because it is entertaining?
It is for professors (really!)

MAP: Europe Today

MAP: Europe in Roman Times

MAP: The Fall of the Roman Empire

MAP: Europe, circa 900 a.d.

MAP: Our World

B. Comparative Methodology

C. Comparative Methods,

1. Scientific Explanation: compare
(a) Description
E.g., Constitutional Courts Exist in some European nations but not others, in Italy, for example, but not in France
(b) Explanation:
adding meaning to the description (usually in ways that the fit the frame of reference of the observer, in this class, seeing law from an American perspective)

Role of the Judges
Common law: not theoreticians, but rather problem solvers
Not much-influenced by the academy
Civil Law: formal, scientific interpreters of law
Very influenced by the academy

General/or not with/or without explanation

Not General: California is a community property state
General and explanatory: Developed legal systems contain procedures for controlling administrative legality (to us this means constitutionality of executive action, much of the time)
General: Administrative legality should be controlled

General-Prescriptive
One who wrongly injures another must pay compensation
Black-letter rule

Scientific Methodology,
Using empirical observation to generate or test general explanatory propositions of law
Distinguish this from mere fact-finding required by law, especially criminal prosecution and civil litigation

Conclusion: Explanation is the Key,
Explanatory comparative law is most useful (especially to U.S. students) because it attempts to be predictive of certain legal results and how legal processes work.
But note that the level of explanation and its details require understanding the different frames of reference

Graphic: Table 8.7Lawyers by Position
Graphic: The German Legal System
Graphic: The French Legal System

Functionalism in Comparative Law,
In English: comparing apples to apples and oranges to oranges
How does the system being compared approach the legal question/problem that you face
Consider both substantive and procedural justice
Be prepared to have to look outside the legal categories that you find familiar
Note the German succession language: forced heirship

Laboratories of Comparative Law
Note that law is a social science,
Do not expect mathematical precision
I am weary of terms like “empirical” observation and “data”
Good uses, bad uses

Examples of “Laboratories”
Note the first example: the European Union compared to U.S. federalism
Other types of federalism: Australian, Canadian, Swiss, and German federations
Germany in particular takes a very interesting approach to “states rights”
Spain allows its states to “customize” the level of regional (state) autonomy they want

Graphic: Separation of Powers

Laboratories of Comparative Law,
Simply put, looking at entire SYSTEMS to see how other people solve certain problems, and analyze their experience and attempted solutions
Policy Objectives: to use as reference
Better Understanding of a problem
Evaluation of one’s own institutions, indeed, critical evaluation of one’s own systems

Legal Transplants: Why?
Why adopt someone else’s laws?
1) General Respect for Donor system
2) National Pride
3) Language and Accessibility
4) History
BUT: consider anti-colonialism as imposing some limitations on adoption

Caveat: Law and Development
Well-intentioned and funded program to help underdeveloped countries
A failure to understand legal culture (and culture more generally) produced failure
Damaged the interest in such programs

The Failure of Law and Development, Merryman,
These characteristics: unfamiliarity with the target culture and society (including its legal system), innocence of theory, artificially privileged access to power, and relative immunity to consequences, have been typical of many law and development proposals and programs for the third world.

Failure of Law and Development, cont.
Put another way, we were probably incompetent to propose or execute third world law and development action, we were encouraged (by our own self-image, by the foreign assistance psychology and by third_world conditions) to do so, and we did not suffer the consequences of having done so

Merryman’s Proposal,
an opportunity to rejuvenate comparative law, to enrich law and society and to strengthen the role of the social sciences and the humanities in legal scholarship. It casts the U.S. scholar in the third world in a more modest and appropriate role, as in_quirer rather than adviser, and puts the developing nation in the more dignified position of host rather than target.

Political/Ideological Comparative Law
I can provide “Cover” to criticize your own system
It can also provide some very interesting examples across the political spectrum

Glendon: Hortatory Comparative Law,
Compulsory vs. Rhetorical Law Making
Compulsory: Law is a command backed up by organized coercion (by the state).

Rhetorical: Exhortative.
What you CANNOT to do vs. What you OUGHT to do.

Glendon,
In England and the United States the view that law is no more or less than a command backed up by organized coercion has been widely accepted. The idea that law might be educational, either in purpose or technique, is not popular among us.
The rhetorical method of law making appears not only in the great continental codifications, but also, here and there, in all sorts of contemporary European legislation. It is most especially evident in continental family law

Lawyers [Graphic]

Separation of Powers

IV. Special Hazards in Comparative Law

A. Session 1: What to avoid, or be sensitive to

Comparative LawSpring 2011
The University of Florida
Fredric G. Levin College of Law

Professor Pedro A. Malavet
Introduction to the Comparative Method

Chapter 4 (Handout 3): The Special Hazards
If Comparative Method discussion was about what to do, this chapter is rather about

What NOT to do in Comparative Law

“Rule Fixation”?
Legal Rules: defined in the way you would expect, a comparison or perhaps merely reading of laws
Rule fixation:A focus of black-letter law and very specifically on substantive black-letter law

Legal Systems
In U.S. terms, think of substantive AND procedural justice, legal rights and their enforcement
We also focus on the state-run legal system and thus ignore:
Customary law and practices
Non-official legal systems

What is the nature of “law”
In that country or region?
France, Spain and the US are reasonable comparisons
Other systems may be more or less different, even radically different
For what particular group or class?

Understanding Law in Action
Legal Extension
Legal Penetration
Legal Culture
Legal Structures
Legal Actors
Legal Processes

System vs. Tradition
1) Civil Law System: an operating set of legal institutions, procedures, and rules. (Merryman)
2) Civil Law Tradition: set of deeply rooted, historically conditioned attitudes about the nature of the law, about the role of law in the society …
3) Relationship: The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective.

Legal Systems
Legal Extension:Social reach of law, the aspects of social life that law proposes to regulate,
Legal Penetration:Social grasp of law, the extent to which law actually regulates social conduct,
Legal Culture:those historically conditioned, deeply rooted attitudes about the nature of law and about the proper structure and operation of a legal system that at large in a society.

Legal Systems,
Legal Structures: Legislature, Executive, Judicial branches.
Legal Actors: professional roles played by participants in the system: advocates, notaries, police, judges, administrative officials, legal scholars, etc.
Legal Processes: legislative and administrative action, judicial proceedings, the private ordering of legal relations, and legal education.

Convergence and Difference
It is important to identify similarities and differences
We are as “rules obsessed” in certain areas, especially in procedure
Yet in Tort Law a common law approach has prevailed in the Western Tradition

What is Comparative Law?
In brief, an adequate description of the civil law requires attention to all dimensions of the legal system and a de-emphasis on rules of law. This is particularly disagreeable because rules are so easy to find and to read, while it is very difficult to find reliable information in law libraries about legal extension, legal penetration, the legal culture, and the structure, composition, and operation of the law machine.

Comparison of Japanese Law
A Cultural Comparison
Concept of “Law” vs. “Social Order” in Japanese Culture
Obviously, “law”, from our perspective, relatively new.
Societal customs provided more control than law prior to the 20th century.
But “orderly” easily became “law abiding”

Japanese Legal System: A Cultural Comparison
The Interplay of Law and Language,
Translation is often quite inadequate: word substitution is not real understanding
Understanding language nuance generally, and technical legal language in particular,

The Concept of Law in Japanese Culture,
The official legal system
The cultural practices that affect law
Law abiding?
Non-litigious?

Bar Passage in Japan
1949: 2,512 / 265 / 10.5%
1950: 2,755 / 269 / 9.8%
1960: 8,302 / 345 / 4.2%
1970: 20,160 / 507 / 2.5%
1980: 28,656 / 486 / 1.7%
1985: 23,855/ 486 / 2.0%
1990: 22,900 / 499 / 2.2%
1992: 23,435 / 630 / 2.7%
2002: 41,459 / 1,183 / 2.85%
After 2006: 27% average

B. Session 2: Language, Classification and "Corruption"

C. Language Difficulties
“Words are very rascals,” says Shakespeare’s Clown in “Twelfth Night.” . . . The flavor of a sentence is apt to change or disappear in a translation; and just this flavor may change the aspect of the case.
Think of this even in English vs. Legal English or
American English vs. British English

Language Difficulties
Multiple official languages in certain countries, e.g., German, French and Italian in Switzerland,
Multiple official languages in international agreements,
Debt or Obligation
English “Debt”: duty to pay a sum certain
French “Dettes”: generic category of “obligations” which includes contractual and extracontractual obligations (torts to us)

Language Examples,
The German word eventuell, for instance, does not mean eventually, but perhaps
French transaction [may mean] compromise, while the French compromis means arbitration clause.

Divorce?
Romans used the term divortium in the sense of the American term divorce
Spain and the Latin-American countries heavily influenced by canonical law, opposed to a dissolution of the marriage bond, was applied directly or indirectly to matters relating to marriages, and therefore the word divorcio was used in the sense of separation.
Spain did adopt “divorce” as dissolution of marriage in 2005

“Law”2 vs. “Right”,
Latin, French, Italian, Spanish and German, there is only one word for “law” and “right”
ius, droit, diritto, derecho, Recht
Term denoting a code or statute
loi, legge, Gesetz

Even more complex cultural difference,
In China and Japan “right” was not a known concept
Duty and obligation were common, but not defined as we might define them
“Customary Law” sometimes really is unwritten “custom”
Sometimes, however, it is recorded custom

East African Law,
“The essence of customary law may be that even litigation is essentially a negotiating process, the goal of which is the wise pacifying of both par_ties rather than the effectuating of ’rights’ of an in_jured party. The aim would therefore be to provide a satisfactory framework for future relations whether or not the ’command’ of the judge con_forms to prior notions (if any) of general rules. And it may follow that there is a large and essential element of ’unknowability’ about customary law and that an at_tempt to make it known in the sense that noncus_tomary law is known, is to change its charac_ter quite radically.”

Beware of Official Translations
Some very good translators make mistakes
Some official translations are not binding because one language predominates

Code Translations,
As the Swiss code provisions show, this can be extremely dangerous
Even the word “Code”
In the US: The encyclopedic collection and organization of laws under standard research categories
In Civil Law: A particular subject are and the organized and compiled laws as provided by legislative act and then by academic practice

Differences in Classification,
Conflicts of Laws
Private International Law

Notaries,
In pretty much the rest of the planet, legal professionals
Monopoly over certain transactions: meaning that notarial form or intervention is required
Have the power of the state to certify
Are public records holders
Collect certain taxes (usually those related to the transactions that they formalize)

German Court Rulings
New York notaries not qualified to provide advice on German Law
Even Swiss notaries may not do so because they are not experts on German Law
And this neglects the problem of territorial limitations
Lawyers/Population/Notaries

C. "Corruption”? 1984 vs. Now
“A recent [circa 1984] empirical study of Rio de Janeiro lawyers found that 80% of those interviewed customarily made grease payments to the clerks.... In some states, payment of both “speed money” and “delay money” is common. Payments to make the entire file disappear are not infrequent in some areas.”

“Corruption”? 1984 vs. Now
“. . . judges, police chiefs, and other local officials in Latin America are notoriously underpaid and provided with inadequate working facilities; judges in smaller cities are usually isolated from each other for months or years at a time—there are no annual conferences or conventions; and finally, their tenure may well depend on maintaining their local political contacts and friendships.

“Corruption” 1984 vs. Now
Not surprisingly, then, while adequate social and economic legislation (such as labor and water laws) is not difficult to find in Latin America, in many cases it is ignored, inefficiently enforced, or implemented in a manner that unduly favors a given element of society.”

Foreign Corrupt Practices Act,
1972 U.S. Law
Are bribes deductible?
Can they get you thrown in jail?
The answer to both questions depends on where you are.

Law in Action
“Legal validity”?
Sometimes the law itself makes the system something that we find unrecognizable and constitutionally unacceptable

“Reciprocity” requirements
Simply means that we will recognize the rights of foreign citizens only if they would recognize the rights of our citizens in their courts
Such statutes are constitutional
But inquiry is limited to black-letter law, not to “actual practice”

Law in Action in US Practice
Fear of arbitrary reprisal (in civil litigation here and in asylum cases)
Forum non conveniens: there must be an adequate alternative foreign forum courtScotland is alright, but Iran or Cuba are not

Forum Non Conveniens
US Courts will not decline jurisdiction when the alternative foreign court is deemed not to offer minimal due process
Even when choice of forum clauses send you abroad, US courts will engage in a Due Process analysis
This is also true in immigration law, where hardship in a foreign legal system may be considered in an asylum request

Comparative Law Notes 1