Fall 2015 - Elective Courses
Advanced Contract Law
Eyal Zamir, Hebrew University
A complete legal proposition ordinarily consists of arguments as to what the law is, and arguments as to what the law should be. Arguments of the latter type embody policy considerations, which in turn rest on moral theories. As the weight of normative arguments in legal discourse increases, so does the importance of being acquainted with these theories and their legal applications. The goal of this course is to present normative theories and to apply them to contract (including commercial and consumer) law. Since similar normative theories underlie policy considerations in other spheres of private and commercial law, the course is expected to contribute to other spheres as well. The course assumes no prior familiarity with any non-legal discipline. It will, however, extensively integrate insights from such disciplines as economics, game theory, normative ethics, cognitive psychology, sociology, and empirical and experimental legal studies.
2 Credits. Evaluation: Class Participation (20%), Take-Home Exam (2,500 words, 8 hours) (80%).
Affirmative Action Law
Mia Caielli, University of Torino
"Affirmative action" is a term used to describe measures taken to increase the representation of women or individual belonging to ethnic minorities or other disadvantaged groups in areas of employment, education and political representation from which they have been historically and legally excluded.
Such measures often involve preferentialtreatments generating political as well as legal controversies: lawmakers have been and still are struggling on the pros and cons of such equality policies, while judges constantly have to decide on the constitutionality of affirmative action legislation and legal scholars debate on the theoretical foundation of "reverse discrimination".
The first part of the course will focus on the different legal meanings of the equality principle and on the main approaches of contemporary legal philosophers and legal theorists (e.g.: Dworkin; Fiss; Sunstein; Bobbio) with the purpose of understanding the constitutional basis of affirmative action in the modern pluralistic democratic state.
As a second step, affirmative action laws and policies of some countries and regions (United States, India, South Africa, Latin America, Europe) will be studied and compared in light of the most relevant constitutional case-law as well as taking into account the jurisprudence of international and supranational courts.
The final part of this course will be dedicated to the analysis of the efficaciousness of affirmative action law and to the discussion of the new challenges of such policies.
3 Credits. Evaluation: Class Participation (20%); Final take-home exam (8 hours) (80%).
Anti-discrimination Law in Europe
Mia Caielli, University of Torino
Protection from discrimination in European countries is characterized by the existence of three layers of norms and institutions which overlap and cooperate to ensure an advanced degree of protection of the fundamental right to equality which is proclaimed in all State Constitutions or Bills of Rights, in the primary law of the European Union (EU) and in the European Convention on Human Rights (ECHR).
This course provides a comparative perspective on equality law in European countries, paying particular attention to recent developments in the protection of the right not to be discriminated against on the basis of gender, race, religion, age, disability, sexual orientation and gender identity in a range of contexts, including employment and education.
The first part of the course offers an overview of European anti-discrimination law as stemming from the complementary systems of the European Union and the Council of Europe. The content and scope of the different sources of anti-discrimination law, such as the relevant provisions of the Treaty on the Functioning of the European Union (TFEU), of the European Charter of Fundamental Rights and Freedoms, of the European so-called "Equality directives" will be analyzed together with Article 14 of and Protocol 12 to the ECHR in order to enlight the challenges of a multilevel system of protection from discrimination.
The second part of the course will focus on the effective implementation of equality legislation in light of the most significant domestic constitutional case-law as well as through the European Court of Human Rights and the Court of Justice of the European Union leading cases and will pay attention to the role played by national and regional quasi-judicial or promotion-type equality bodies in strengthening the enforcement of equality laws.
The theories and practices of anti-discrimination law will be analyzed in order to help students to make systematic interpretation of laws providing protection against discriminatory treatments and to understand the key concepts of equality law: by the end of the course students should have an overall awareness of the European multilevel protection from different forms of discrimination and should be able to critically analyze the case-law interpreting the equality principle.
2 Credits. Evaluation: Class participation (20%); Final paper (3,500 words) (80%).
Comparative Judicial Review
Yoav Dotan, Hebrew University
The purpose of this course is to discuss, on a comparative basis, the principles of judicial review on legislation and executive decisions in various legal systems. The process of judicial supervision is influenced by the constitutional framework as well as by the legal culture and political conditions of each system. The course will deal with the general conditions under which judicial review takes place as well as with the structural basis of the process of review and the nature of the reviewing courts. It will discuss the fundamental theoretical questions that control the phenomenon of judicial review. It will also examine specific questions such as the preliminary conditions for judicial review (standing etc.), the grounds for review in each system and so forth. Special attention will be given to questions of human rights and national security. The course will focus primarily on the legal systems of the U.S., England and Israel, but other legal systems such as those of France, Canada, Germany and India will also be discussed.
2 Credits. Evaluation: Class Participation (20%), Take-Home Exam (8 hours) (80%).
Comparative Family Law
Jorge Castineira Jerez, ESADE Law School
This course will examine the main principles and policies in modern comparative family law, particularly in the civil and common law systems. The course is divided into two parts. In the first part, we will analyse the evolution of the legal and social concepts of family in recent times. During the second part of the course, we will discuss and examine the most challenging areas of modern family law. The areas to be covered during the course are as follows: marriage and its alternatives;same-sex relationships;divorce grounds, procedures and effects;parental rights and responsibility;and child protection (including adoption). We will use the Socratic Method, in which the class will be structured as a dialogue based on the assignments for each session. After discussing the assigned readings, we will attempt to reach some collective conclusions about these specific topics.
2 Credits. Evaluation: Class participation (25%); Final paper (5,000 word limit) (75%).
Criminal Law Defenses: Theory, Comparative Perspectives and International Criminal Law
Miri Gur-Arye, Hebrew University
The course will discuss and analyze the various criminal law defenses. It will offer a theoretical basis for analyzing the defenses in criminal law, by discussing the distinction between justifications, which negate the criminal wrongdoing, and excuses, which negate the actor's accountability for the wrong.
The rationales of the various defenses and the dilemmas that have arisen regarding some of the defenses will then be addressed. Topics such as the various rationales justifying the use of lethal force to defend oneself will be discussed. Debated issues, such as whether either duress or necessity should excuse an actor who has sacrificed the life of an innocent person in order to save her own life, will be elaborated.
In addition to the discussion of "classic" defenses, the course will point out contemporary developments, such as the accommodation of multicultural claims and feminist movements, that have produced interest in additional, or at least modified, defenses. Examples of such contemporary additions include either a "cultural defense" or a modified self-defense for battered women who kill their attacker while asleep or in otherwise non-confrontational situations.
Throughout the discussion, the different approaches of the Common law and German law will be highlighted. The comparative discussions will relate, in addition, to the defenses under International Criminal Law, as drafted in the ICC Rome Statute (2002) and implemented by the ICC tribunal cases. Case studies for the different approaches, such as whether reliance on a lawyer's mistaken advice should serve as an excuse either within national legal systems or under international criminal law, will be presented.
2 credits. Evaluation: Class Participation (15%); a paper analyzing one of the topics raised in class (15%); bonus of up to 5% for presenting the paper in class; final take-home exam (8 hours) (70%).
International Contracts and Sales Law
Jorge Castineira Jerez, ESADE Law School
Franz Werro, Georgetown Law and University of Fribourg
In the light of national cases, the course analyzes private law norms regulating international contracts. It focuses on international conventions and uniform rules of law, such as the United Nations Convention on Contracts for the International Sales of Goods (CISG), the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, INCOTERMS, and others. The course includes some aspects of conflicts of law rules, as well as an analysis of the main international instruments governing international commercial arbitration.
3 Credits. Evaluation: Class participation (25%); 3-hour, in-class, open-book final exam (75%).
Selected Topics in Criminal Law: Comparative Perspectives
Miri Gur Arye, Hebrew University
Marcel Niggli, University of Fribourg
The course will discuss various topics in criminal law. Throughout the discussion, the different approaches of the Common law and German law will be highlighted.
The course will relate to constitutional constraints on substantiate criminal law and will discuss debated issues such as the debates with regard to the constitutionality of the offense of possession of child pornography.
The course will further highlight the tendency to overuse the criminal law in times of crisis and discuss issues such as can the war against terror justify torture in situation of ticking bombs? The impact of "moral panic" -an exaggerated societal reaction to an assumed threat on moral values -on the criminal justice systems serve as an additional example of the overuse of the criminal law, and the example to be discussed in this context relates to the legal responses to pedophilia.
Additional topics to be discussed will relate to the scope of Good Samaritan duties imposed by the criminal law. The discussion will touch upon whether and under what conditions the criminal law may impose a duty to inform crime.
Tuesdays' classes will be taught by Marcel Niggli, Thursdays' classes by Miri Gur-Arye.
3 Credits. Evaluation: Class participation (15%); one short reaction paper (approx. 750 –1,000 words) to each professor, on a topic discussed in his/her class (15%); final take-home exam (8 hours) (70%).
World Trade Law
Michael Ewing-Chow, National University of Singapore
The phenomenon of globalization over the last 50 years has been fueled not just by technological innovation but also legal innovation. The GATT and later the WTO have attempted to create a system where the rules for the trade in goods and services are clearer and fairer. The legal innovations found in the GATT and subsequent WTO Agreements have also influenced FTAs and even International Investment Agreements. Fundamental to the WTO disciplines is the principle of non-discrimination. The problem often is, however, what constitutes discrimination, whether such discrimination ca be justified and whether non-economic factors such as health and the environment or other public policy considerations can modify the rules. This tension in World Trade Law is a theme in both the disciplines for trade in goods and services as well as the agreements on standards like the TBT and SPS as well as even the trade remedy rules such as Safeguards, Subsidies and Anti-Dumping. It is hoped that students taking the course will emerge with an appreciation for nuanced arguments about discrimination in addition to an understanding of the WTO disciplines. The seminar will be conducted in a Socratic manner and students who take the course must be prepared to do ALL the readings, think about the issues and engage in discussion.
2 Credits. Evaluation: Class Participation (20%); Final take-home exam (8 hours) (80%).