Fall 2013 - Elective Courses
Advanced Property Law
Daphna Lewinsohn-Zamir, Hebrew University of Jerusalem
The right to private property is a fundamental right, necessary for the safeguarding of personal freedom and autonomy, and for human flourishing. In the course, we will discuss several issues involving property rights – such as the good faith purchase doctrine, the numerus clausus principle, takings compensation, dead hand control, property exempted in bankruptcy proceedings, landlord and tenant law, and rent-control – from analytical, theoretical and comparative perspectives. The theoretical analysis will include, among other things, subjective and objective theories of welfare (contrasting mental-state and preference-satisfaction theories with objective ones), economic analysis of law, the personhood theory, game theory, behavioral law and economics, and theories of distributive justice.
The course will introduce the students to the relevant theories in philosophy, economics, and psychology. No prior knowledge is necessary. All comparative reading materials will be in English.
2 Credits. Evaluation: Class Participation (20%), Take-Home Exam (2,500 words, 8 hours) (80%).
Comparative Constitutional Law
Eva Maria Belser Wyss, University of Fribourg
In this course, students will analyse constitutional matters such as government systems, judicial review, checks and balance arrangements, and human rights protection form a comparative perspective. We will first focus on fundamental constitutional values, such as individual freedom rights, and examine how these values are protected and promoted in different constitutional systems. By analysing constitutional texts, cases and further materials (for instance in the field of free speech, freedom of religion and non-discrimination) we will aim at better understanding different human rights concepts and concretisation mechanisms as well as common features of different legal systems and contexts. We will then turn to constitutional principles such as democracy, the rule of law, federalism and decentralisation and familiarize ourselves with different ways to organise public participation, to protect common interests and to set up a system of horizontal and vertical power sharing. In doing so, we will also try to better understand how different constitutional systems are affected by and react to increasing internationalisation of fragmentation of law and society. Throughout the course, we will discuss methodological matters of comparative law and improve our knowledge in the general theory of the state. The main focus of the course will be on the following constitutional systems: Germany, France, Switzerland, USA, India, South Africa and Ethiopia but we will also look at some new or fragile states and at some states in transition (Kosovo, South Soudan, and Nepal, etc.). Time permitting we will moreover discuss some new challenges to constitutional law such as migration, erosion of state power, and the impact of new technologies on constitutional matters.
2 Credits. Evaluation: Active participation (presentation of cases and texts, discussions) (25%), Paper (25%), In-Class Exam (1 hour, open book) (50%).
Comparative Private Law
Helmut Grothe, Free University of Berlin
This course will introduce you to the fascinating fields of Comparative Law. A comparative overview of the legal traditions in Europe and Common Law countries shall be given. It will examine selected legal issues in different jurisdictions, with particular emphasis on Germany and the United Kingdom, as well as some cutting-edge problems in European Harmonized Law. Students are asked to participate actively by contrasting these to the approach of their own jurisdiction. The most important issue of Civil Law today is its Worldview and its perspectives on Citizenship. In other words, particularities of the Civil Law sustain a worldview that stems from Roman Law-traditions and practices of the Roman Empire. These pertain to more recent legal developments taking place in a unifying Europe. The profiles of the major functionaries in today's Civil Law domain: judges, attorneys, EU civil servants and administrators mirror such traditions. The trend goes even further: National civil law shall be harmonized within Europe, starting with contract law, and the first projects like the Common Frame of Reference or PECL are just the beginning.
This Course is not restricted to a traditional comparative perspective. Means are provided for a correct and effective transnational communication between legal professionals. Where also Common Law lawyers have to direct themselves to EU Civil Law colleagues and counterparts, they should possess knowledge and skills to understand both civil law concepts and EU harmonized civil law.
2 Credits. Evaluation: Class Participation (25%), Presentations (15%) and Final Paper (4,000 word limit) (60%).
Conflicts of Law and Transnational Civil Procedure
Helmut Grothe, Free University of Berlin
Transnational issues are more and more present in a globalized world. Disputes between parties from different states or countries and disputes having contacts with multiple jurisdictions raise a host of challenging legal questions, including: which jurisdiction's law will govern the dispute; whether and in what circumstances a judgment rendered in one state or country will be recognized and enforced in other jurisdictions. State laws, European Law and international and foreign law all play a role in deciding these issues, which can have a profound impact on the ultimate resolution of the controversy. This class will take a comparative look at these issues with a focus on the European point of view. The course deals in depth with one of the most complex issues of Private International Law directly affecting the process of harmonization of Private Law and Private International Law in Europe: the application of foreign law by judicial and non-judicial authorities. During the last decade Europe has undertaken an active and broad process of harmonization of Private International Law. Many areas of law of diverse nature have been influenced by this trend to the point that nowadays a growing set of common choice-of-law rules exist within the EU. The course closes with an overview of the procedural rules both on a European and International level.
3 Credits. Evaluation: Class Participation (25%), Presentations (15%) and Final In-Class Exam (60%) (3 hours, open book).
Eva Maria Belser Wyss, University of Fribourg
Satvinder Juss, The Dickson Poon School of Law, King's College London
The first part of the course is an introductory section that will examine the different levels (national and international) of legal protection of human rights. We will pay special attention to the bill of rights of national constitutions and to the international human rights treaties.
The second part of the course will study topics chosen from several international conventions (including those of Europe and Latin America) and the UK's Human Rights Act of 1998, as a case study of national implementation of human rights. The topics will include substantive rights (the right to life and the death penalty; the prohibition of torture; freedom of religion; freedom of expression; freedom of assembly and association). We then turn to principles of criminal procedure (non-retroactivity, investigations (privacy of spaces), arrests (deprivation of physical liberty), and trials (illegally obtained evidence and entrapment), privacy of decisions and the prohibition of discrimination .
The last section will examine human rights in emergency situations.
3 Credits. Evaluation: Attendance and Class Participation (25%), Final Paper of 4,000 words together with the proposal for a paper topic and a first draft (75%).
This course is being offered for three credits. We will accept a maximum of eight students for the "one-plus option", giving priority to students who are fulfilling a writing requirement at their law school. Students taking this option will receive four credits; they will write a paper of at least 6,000 words, excluding footnotes.
International Arbitration Law
Rémy Gerbay, Queen Mary, University of London
Maxi Scherer, Queen Mary, University of London
International arbitration is the preferred dispute resolution mechanism for transnational disputes. This course introduces students to the fundamental principles of international commercial and investment arbitration, with particular reference to their practical and strategic application. Students experience some of the most important steps in an international arbitration by putting themselves in the shoes of a counsel or arbitrator in a simulated arbitration. The majority of the subject involves "learning-by-doing" exercises, supervised and guided by the subject leaders, including for the students to:
• Draft an arbitration agreement and a request for arbitration;
• Participate either as counsel or arbitrator in a procedural hearing;
• Argue the challenge of an arbitrator and for/against the recognition or annulment of an award; and
• Recognise the key tactical considerations involved at the different stages of the international arbitration process.
2 Credits. Evaluation: Class Participation (30%), In-Class Exam (2 hours, open book) (70%)
Ugo Pagallo, University of Torino
Since the US Supreme Court decision in June 1997 on the Communications Decency Act, it has become crucial to define the nature of means like the Internet and the World Wide Web. Fundamental legal topics such as the protection of constitutional rights deeply depend upon that preliminary definition. The first purpose of the course is hence to analyze the structure of the digital world in order to clarify what is really at stake when we discuss about Internet Law from both a jurisprudential and legislative perspective, i.e., if and to what extent digital technology is modifying contemporary legal systems and the set of principles, concepts, and ways of legal reasoning through which we approach and study national, international, and transnational law. In working toward this goal, the course examines three fields of Internet Law, such as digital copyright, data protection, and computer crimes. In light of the specificities of these fields, the aim is twofold: on the one hand, attention is drawn to how digital technology affects the traditional idea of the law as a set of rules enforced through the menace of physical sanctions, thereby suggesting new forms of legal enforcement through self-enforcing technologies, systems of filters on the internet, and the design of ICT interfaces. On the other hand, focus is on how autonomous and even “intelligent” artificial agents affect this framework, e.g., the “contract problem” and a new generation of “robotic crimes.” The overall goal of the course is to leave the student with a well-balanced and critical approach to the field of Internet Law. Regular participation in class meetings is strongly recommended. All class discussions should be open, robust but respectful, and uncensored.
2 Credits. Evaluation: Class Participation (25%), Mid Take-Home Exam (8 hours) (30%), Take-Home Exam (8 hours) (45%)
Secured Transactions in Transnational Perspective
Michael Schillig, The Dickson Poon School of Law, King's College London
The course is set against the background of the globalization of the flows of goods, services and capital and the internationalization of business practices. Whereas contract law is a well researched and widely taught topic in this context, the implications of personal property law and secured transactions are often neglected. This course aims to close this gap.
It focuses on the nature and characteristics of rights in personal property in Common law (England and Wales, United States) and Civil law (Germany, France) as well as at transnational level. It will cover the transfer of title in chattels, debt receivables and investment securities; the creation and transfer of security interests and the legal nature of modern funding techniques. In this context we will analyse at Articles 8 and 9 of the Uniform Commercial Code and the EU Settlement Finality and Financial Collateral Directives. We shall also consider Article 2A UCC (on equipment leases), the UNIDROIT Convention on International Financial Leasing, the UNIDROIT Convention on International Factoring, the UNIDROIT Convention on International Interests in Mobile Equipment, and the UN Convention on the Assignment of Receivables in International Trade, as well as the proprietary aspects covered by the Draft Common Frame of Reference. As far as industry practices are concerned, we shall discuss the financial industry's Swap and Repo Master Agreements and their use and status especially in the area of the netting of exposures.
2 Credits. Evaluation: Class Participation (20%), In-Class Exam (2 hours, open book) (80%).
Transnational Criminal Law
Prabha Kotiswaran, The Dickson Poon School of Law, King's College London
Nicola Palmer, The Dickson Poon School of Law, King's College London
Criminal law is no longer confined by national borders. Genocide, crimes against humanity, war crimes and the crime of aggression carry individual responsibility under international law. Crimes such as human trafficking, piracy, drug trafficking and terrorism have transborder effects, introducing an international dimension to national criminal laws. This course aims to provide an in-depth understanding of international and transnational criminal law from institutional, substantive and comparative perspectives.
The institutional dimension identifies the various mechanisms by which prosecutions for international and transitional crimes take place. We will focus on the jurisdiction of domestic and international courts, the principles that underpin extensions of criminal law outside the confines of the nation state, and the critiques raised against them. We will then address transnational and international offences and available defences, with a focus on genocide, crimes against humanity, rape and human trafficking. Finally, the comparative dimension of the course will examine the domestic interpretations of international criminal law, as well as the historical diffusion of substantive criminal law (e.g. Indian Penal Code, 1860) with specific case studies from South Asia and Central Africa.
3 Credits. Evaluation: Class Participation (including presentations and reaction papers) (30%), Final Paper (4000 word limit) (70%).
Transnational Legal Theories: Sources, Processes and Institutions
Ugo Pagallo, University of Torino
The aim of the course is to deepen current work on transnational law from the viewpoint defined by the notion of governance. An increasing number of issues, such as national security, cyber-terrorism, availability of energy and basic resources, health or economy, are systemic, that is, they concern the whole infrastructure and environment of todayâ€™s ICTs-driven societies and, thus, they have to be tackled at both international and transnational levels. Unsurprisingly, national law-making activism is increasingly short of breath, and this is why constitutional powers of national governments have been joined - and even replaced - by the network of competences and institutions summarized by the idea of governance. Whilst this profound transformation affects the sovereignty of national states, much as democratic processes and models of political legitimacy, the attention is drawn to how the sources of the law are evolving in a globalized world and the role that transnational law can play for any future "good onlife governance".
2 Credits. Evaluation: Class Participation (30%), Take-Home Exam (8 hours) (70%).
Trusts: Comparative Law and Practice
Adam Hofri-Winogradow, Hebrew University of Jerusalem
Useful for any student preparing for a career in the lucrative private client sector, this course provides a comparative survey of trusts law and practice, including cutting-edge trust models and drafting techniques using a variety of domestic and international trust regimes. Students will acquire an understanding of the different types and contexts of trust practice, including the use of trusts to plan succession to a settlor's assets, to provide for dependents and persons lacking capacity, to minimize the tax burden borne by an individual, family or estate, to shield assets from a settlor's creditors, to securitize debt, to structure complex transactions, to invest pooled funds, to pass control of a family business between generations and more. We will discuss the recent radical changes in trust law, from the reception of the trust in civil law and mixed legal systems through the weakening of beneficiaries' rights to receive information about the trust and enforce the trust, the exclusion of trustees' traditional duties and liabilities, and the development of new trust actors such as protectors and non-beneficiary enforcers. The course includes analysis of trust deeds using the trust regimes of several jurisdictions, as well as reflection on the role of trust practice in the crisis of the welfare state. To take this course, students should have completed a basic course in tax law and a basic course in the law of corporations.
- a familiarity with the different trust regimes found in different jurisdictions, including U.S. jurisdictions, England, civil law jurisdictions, mixed legal systems and offshore jurisdictions
- an understanding of the different types and contexts of trust practice
- a familiarity with recent innovations in trust technique, from protectors, to non-beneficiary enforcers, to STAR and VISTA trusts, to the use of trust regimes by non-residents
- a familiarity with U.S., U.K. and offshore trust documents, their structure and drafting techniques
2 Credits. Evaluation: Class Participation (20%), Take-Home exam (2,500 words) (8 hours) (80%)