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Vol 21 No 9 Sept/Oct 2016

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Goode on Commercial Law

Edited by: Ewan McKendrick
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Courts and Comparative Law

Edited by: Mads Andenas, Duncan Fairgrieve

ISBN13: 9780198735335
Published: July 2015
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £125.00

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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.

Comparative Law
1. Introduction - Courts and Comparative Law: In Search of Common Language for Open Legal Systems

2. Is it Legitimate and Beneficial for Judges to Use Comparative Law?
3. Comparative Law and the Courts: What is Comparative and What is Law?
4. Foreign Law before the French Courts: The Conflicts of Law Perspective
5. Foreign Law in National Courts: A Common Law Perspective
6. Foreign Law in International Legal Practice

7. Common Ground: A Starting Point or Destination for Comparative Law Analysis by the European Court of Human Rights?
8. Comparative Law and the Court of Justice of the European Union: Interlocking Legal Orders Revisted
9. National Judges and Strasbourg Case Law: Comparative Reflections About the Italian Experience
10. Comparative Law and the European Union Civil Service Tribunal
11. Networks, Dialogue, or One-Way Traffic? An Empirical Analysis of Cross-Citations Between Ten of Europe's Highest Courts
12. Comparative Law and the Method of Law: Ascertainment of the International Court of Justice

13. Comparative Law as an Essential Feature of French Public Law
14. Comparative Legal Methodology of the Conseil d'Etat: Towards an Innovative Judicial Process?
15. The Use of Comparative Law Before the French Administrative Law Courts: Or the Triumph of Castles Over Pyramids
16. The Use of Comparative Law Before the Italian Public Law Courts
17. Cooperation of Constitutional Courts in Europe - The Openness of the German Constitution to International, European, and Comparative Constitutional Law
18. Judicial Dialogue in a Multilevel Constitutional Network: The Role of the Portuguese Constitutional Court
19. Judges and Professors: the Influence of Foreign Scholarship on Constitutional Courts' Decisions
20. 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. 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. Comparative Law Before the Supreme Courts of the UK and the Netherlands: An Empirical and Comparative Analysis
23. Constructing the 'Foreign': American Law's Relationship to Non-Domestic Sources
24. The Use of Comparative Law Before the French Private Law Courts
25. The Use of Comparative Law Before the French Cour de Cassation : The View From Academia
26. Italian Courts and Comparative Law
27. The Controversial Status of International and Comparative Law in the United States
28. Foreign Law and the Modern Ius Gentium
29. Comparative Law Before the Spanish Private Law Courts in the XXI Century
30. Comparative Legal Reasoning and the Courts: A View from the Americas
31. Comparative Law in the German Courts
32. Comparative Law in the Syariah Courts: A Case Study of Singapore, Malaysia, and Brunei

33. Liaison Magistrates: Their Role in International Judicial Cooperation and Comparative Law
34. Comparative Law in Consumer Litigation
35. The Use of Comparative Law by Courts in Birth-Related Tort Cases
36. The Use of Comparative Law in A & Others v National Blood Authority
37. What Europeans Can Learn from an Untold Story of Transjudicial Communication: The Swiss-Turkish Experience
38. DCFR in the Courts: The Remaking of Comparative Law