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  3. ASCL Studies in Comparative Law

ASCL Studies in Comparative Law publishes monographs and collections that broaden theoretical and practical knowledge of the world's many legal systems. Published under the direction of the American Society of Comparative Law, the ASCL Studies examine legal problems in a comparative light to advance legal science, develop technical insights, and promote greater cooperation across jurisdictional and cultural boundaries. This book series serves legal practitioners and those seeking to improve law and justice by publishing in-depth comparative studies of specific legal problems in every area of law. The series has two general editors. David Gerber is Distinguished Professor of Law and Co-Director of the Program in International and Comparative Law at Chicago-Kent College of Law, Illinois Institute of Technology. He is past President of the American Society of Comparative Law. Mortimer Sellers is Regents Professor of the University System of Maryland and Director of the Baltimore Center for International and Comparative Law. He is past President of the Internationale Vereinigung für Rechts-und Sozialphilosophie.

  • General Editors: David Gerber, Illinois Institute of Technology, Mortimer Sellers, University of Baltimore

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16 results in ASCL Studies in Comparative Law

Constitution Building After the Arab Spring
  • A Comparative Perspective
  • Francesco Biagi
  • Coming soon
  • Expected online publication date:
    October 2024
    Print publication:
    01 October 2025

Separation of Powers and Antitrust
  • Vincent Martenet
  • Published online:
    28 September 2023
    Print publication:
    12 October 2023
  • Separation of powers and antitrust deal with power and occupy centre stage in our challenging, digital times, but their interactions have not yet been analysed. This timely and ground-breaking book provides an innovative cross-disciplinary analysis of the potential convergence of these two fields. Notably, Vincent Martenet examines the concentration of politico-economic power in the hands of a few digital firms which have adopted private regulation, impacting an entire industry and society at large. He combines doctrinal method with historical developments, case studies, assessment of legislative proposals, and observations on the functioning of digital markets and democracy in the digital era. The book sketches important new axes of the separation of powers and suggests that antitrust may contribute, albeit in a limited way, to greater trust in both society and democracy: 'antitrust for trust', the ultimate apparent antitrust paradox.

Law and Political Economy in China
  • The Role of Law in Corporate Governance and Market Growth
  • Tamar Groswald Ozery
  • Published online:
    10 August 2023
    Print publication:
    24 August 2023
  • Applying a novel theoretical approach, Tamar Groswald Ozery combines law and political economy to deconstruct the role of law in China's market development since 1978. The book examines how economic and administrative powers within China's Party-state system have been legally and politically configured throughout China's growth process. Using a vast range of primary sources, Ozery illuminates how the law acts as a mediating institution that translates and gives shape to the relations between politics and economics. Using the evolution of public firms and corporate governance as a case study, the book illustrates the complex relationships between law, politics, and economic development, and sheds new light on the possible varieties of growth-supporting governance institutions in firms. By studying China's distinct market experience through the lens of law and political economy, the book offers a significant contribution to development studies, comparative corporate governance, and interdisciplinary discussions about China as a growth model.

Federalism and Decentralization in the Contemporary Middle East and North Africa
  • Edited by Aslı Ü. Bâli, Omar M. Dajani
  • Published online:
    15 January 2023
    Print publication:
    05 January 2023
  • This volume, the first of its kind in the English language, examines the law and politics of federalism and decentralization in the Middle East and North Africa. Comprised of eleven case studies examining the experience across the region, together with essays by leading scholars providing comparative and theoretical perspectives and a synthetic conclusion by the co-editors, the volume offers a textured portrait of the dilemmas of decentralization during a period of sweeping transition in the region. The collection addresses an important gap in the comparative decentralization literature, which has largely neglected the MENA region. Both retrospective and forward-looking in orientation, the book is a valuable resource not only for scholars of comparative politics, constitutional design, and Middle East studies, but also for policy makers evaluating the feasibility and efficacy of decentralization as a vehicle for improving governance and responding to identity conflict in any part of the world.

Alternative Approaches to Human Rights
  • The Disparate Historical Paths of the European, Inter-American and African Regional Human Rights Systems
  • Christopher Roberts
  • Published online:
    10 November 2022
    Print publication:
    24 November 2022
  • This book explores the comparative historical evolution of the European, Inter-American and African regional human rights systems. The book devotes attention to various factors that have shaped the systems: the different circumstances in which they were founded; the influence of major states and inter-state politics within their respective regions; gradual processes of institutional evolution; and the impact of human rights advocates and claimants. Throughout, the book devotes careful attention to the impact of institutional and procedural choices on the functioning of human rights systems. Overarchingly, the book explores the contextually-generated differences between the three systems, suggesting that human rights practice is less unitary than it might at times appear. Prescriptively, the book proposes that, contrary to the received wisdom in some quarters, the Inter-American system's dual-track approach may provide the most promising model in regards to future human rights system design.

Proportionality and Transformation
  • Theory and Practice from Latin America
  • Edited by Francisca Pou-Giménez, Laura Clérico, Esteban Restrepo-Saldarriaga
  • Published online:
    27 October 2022
    Print publication:
    03 November 2022
  • This is the first book on proportionality in Latin American constitutional law. Leading scholars in the region explore how proportionality analysis has become a key part of the constitutional law of a region where, almost paradoxically, constitutions with clear transformative intentions coexist with the highest indicators of social inequality in the world. In this book, scholars, practitioners and students will find a fascinating account of how proportionality has been a central concept in Latin America's constitutional struggles to curtail excessive uses of state power. The book illustrates how, more recently, proportionality has played an important role in national processes of constitutionalization and transitional justice, and how its current uses in the domain of social rights endow it with a distinctive meaning and role in regional constitutionalism. This pioneering book opens up the space for a much needed global conversation on how Latin America has decisively contributed to comparative constitutional law.

A Cosmopolitan Jurisprudence
  • Essays in Memory of H. Patrick Glenn
  • Edited by Helge Dedek
  • Published online:
    10 December 2021
    Print publication:
    16 December 2021
  • H. Patrick Glenn (1940–2014), Professor of Law and former Director of the Institute of Comparative Law at McGill University, was a key figure in the global discourse on comparative law. This collection is intended to honor Professor Glenn's intellectual legacy by engaging critically with his ideas, especially focusing on his visions of a 'cosmopolitan state' and of law conceptualized as 'tradition'. The book explores the intellectual history of comparative law as a discipline, its attempts to push the objects of its study beyond the positive law of the nation-state, and both its potential and the challenges it must confront in the face of the complex phenomena of globalization and the internationalization of law. An international group of leading scholars in comparative law, legal philosophy, legal sociology, and legal history takes stock of the field of comparative law and where it is headed.

Freedom of Expression
  • The Revolutionary Roots of American and French Legal Thought
  • Ioanna Tourkochoriti
  • Published online:
    29 October 2021
    Print publication:
    11 November 2021
  • Two legal systems founded on similar Enlightenment philosophical and political values use state coercion differently to regulate a liberty at the core of the Enlightenment: freedom of expression. This comparative study of France and the United States proposes a novel theory of how the limits of freedom of expression are informed by different revolutionary experiences and constitutional and political arrangements. Ioanna Tourkochoriti argues that the different ways freedom of expression is balanced against other values in France and the United States can be understood in reference to the role of the government and the understanding of republicanism and liberty. This understanding affects how jurists define the content and the limits of a liberty and strike a balance between liberties in conflict. Exploring both the legal traditions of the two countries, this study sheds new light on the broader historical, social and philosophical contexts in which jurists operate.

Juries, Lay Judges, and Mixed Courts
  • A Global Perspective
  • Edited by Sanja Kutnjak Ivković, Shari Seidman Diamond, Valerie P. Hans, Nancy S. Marder
  • Published online:
    03 August 2021
    Print publication:
    29 July 2021
  • Although most countries around the world use professional judges, they also rely on lay citizens, untrained in the law, to decide criminal cases. The participation of lay citizens helps to incorporate community perspectives into legal outcomes and to provide greater legitimacy for the legal system and its verdicts. This book offers a comprehensive and comparative picture of how nations use lay people in legal decision-making. It provides a much-needed, in-depth analysis of the different approaches to citizen participation and considers why some countries' use of lay participation is long-standing whereas other countries alter or abandon their efforts. This book examines the many ways in which countries around the world embrace, reject, or reform the way in which they use ordinary citizens in legal decision-making.

Rediscovery and Revival in Islamic Environmental Law
  • Back to the Future of Nature's Trust
  • Samira Idllalène
  • Published online:
    11 March 2021
    Print publication:
    01 April 2021
  • The common ground between religions could be fruitfully promoted in order to call for an effective protection of the climate system. Positioned at a junction of different worlds, this book is a multidisciplinary work on Islamic law, common law and environmental law. Looking at the past, present and future, the author suggests a paradigm shift starting from the common ground in order to propose a better future for environmental law in Muslim countries. As the first book to compare Shari'a and common law in field of environmental protection, it suggests a new path in comparative environmental law by recognizing the contributions of both history and spirituality.

European Constitutional Courts and Transitions to Democracy
  • Francesco Biagi
  • Published online:
    05 December 2019
    Print publication:
    02 January 2020
  • This book brings together research on democratization processes and constitutional justice by examining the role of three generations of European constitutional courts in the transitions to democracy that took place in Europe in the twentieth century. Using a comparative perspective, the author examines how the constitutional courts during that period managed to ensure an initial full implementation of the constitutional provisions, thus contributing - together with other actors and factors - to the positive outcome of the democratization processes. European Constitutional Courts and Transitions to Democracy provides a better understanding of the relationship between transitions to democracy and constitutionalism from the perspective of constitutional courts.

Ruling the Law
  • Legitimacy and Failure in Latin American Legal Systems
  • Jorge L. Esquirol
  • Published online:
    31 October 2019
    Print publication:
    21 November 2019
  • The North-South global divide is as much about perception and prejudice as it is about economic disparities. Latin America is no less ruled by hegemonic misrepresentations of its national legal systems. The European image of its laws mostly upholds legal legitimacy and international comity. By contrast, diagnoses of excessive legal formalism, an extraordinary gap between law and action, inappropriate European transplants, elite control, pervasive inefficiencies, and massive corruption call for wholesale law reform. Misrepresented to the level of becoming fictions, these ideas nevertheless have profound influence on US foreign policy, international agency programs, private disputes, and academic research. Jorge L. Esquirol identifies their materialization in global governance - mostly undermining Latin American states in legal geopolitics - and their deployment by private parties in transnational litigation and international arbitration. Bringing unrelenting legal realism to comparative law, this study explores new questions in international relations, focusing on the power dynamics among national legal systems.

Evaluation of Evidence
  • Pre-Modern and Modern Approaches
  • Mirjan Damaška
  • Published online:
    13 December 2018
    Print publication:
    20 December 2018
  • Judges were never bound by law to convict a defendant unless they considered him guilty. Yet, they could be prohibited by law from convicting a person they consider guilty due to the absence of legally prescribed or the presence of legally prohibited evidence. Evaluation of Evidence addresses the question: should the law restrict the freedom of judges in assessing the probative value of evidence in the criminal process? Tracing the treatment of evidence from pre-modern to modern times, Mirjan Damaška argues that there has always been some understanding about rules regarding the use and treatment of evidence, and these rules should not be looked askance as a departure from ideal arrangements. In a time when science and technology have the ability to contribute to factual inquiry, there needs to be acceptance of rules that expand or corroborate evidence produced by our native sensory apparatus.

Comparing Law
  • Comparative Law as Reconstruction of Collective Commitments
  • Catherine Valcke
  • Published online:
    19 October 2018
    Print publication:
    25 October 2018
  • The enterprise of comparative law is familiar, yet its conceptual whereabouts remain somewhat obscure. Comparing Law: Comparative Law as Reconstruction of Collective Commitments reconstructs comparative law scholarship into a systematic account of comparative law as an autonomous academic discipline. The point of that discipline is neither to harmonize world law, nor to emphasize its cultural diversity, but rather to understand each legal system on its own terms. As the proposed reconstruction exercise involves bridging comparative law and contemporary legal theory, it shows how comparative law and legal theory both stand to benefit from being exposed to each other. At a time when many courses are adding a transnational perspective, Valcke offers a more theoretical, broadened, and refreshed view of comparative law.

Prosecutors and Democracy
  • A Cross-National Study
  • Edited by Máximo Langer, David Alan Sklansky
  • Published online:
    13 October 2017
    Print publication:
    26 October 2017
  • Focusing on the relationship between prosecutors and democracy, this volume throws light on key questions about prosecutors and the role they should play in liberal self-government. Internationally distinguished scholars discuss how prosecutors can strengthen democracy, how they sometimes undermine it, and why it has proven so challenging to hold prosecutors accountable while insulating them from politics. The contributors explore the different ways legal systems have addressed that challenge in the United States, the United Kingdom, and continental Europe. Contrasting those strategies allows an assessment of their relative strengths - and a richer understanding of the contested connections between law and democratic politics. Chapters are in explicit conversation with each other, facilitating comparison and deepening the analysis. This is an important new resource for legal scholars and reformers, political philosophers, and social scientists.

National Security Secrecy
  • Comparative Effects on Democracy and the Rule of Law
  • Sudha Setty
  • Published online:
    13 July 2017
    Print publication:
    13 July 2017
  • Excessive government secrecy in the name of counterterrorism has had a corrosive effect on democracy and the rule of law. In the United States, when controversial national security programs were run by the Bush and Obama administrations - including in areas of targeted killings, torture, extraordinary rendition, and surveillance - excessive secrecy often prevented discovery of those actions. Both administrations insisted they acted legally, but often refused to explain how they interpreted the governing law to justify their actions. They also fought to keep Congress from exercising oversight, to keep courts from questioning the legality of these programs, and to keep the public in the dark. Similar patterns have arisen in other democracies around the world. In National Security Secrecy, Sudha Setty takes a critical and comparative look at these problems and demonstrates how government transparency, privacy, and accountability should provide the basis for reform.