DOCSLIB.ORG

The Emergence of a Common European Law in the Area of Tort Law: the Eu Contribution

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Emergence of a Common European Law in the Area of Tort Law: the Eu Contribution Andenas, Bell, Fairgrieve MS. Num. VanGerven 15 August 2002 Page 1 6 THE EMERGENCE OF A COMMON EUROPEAN LAW IN THE AREA OF TORT LAW: THE EU CONTRIBUTION. WALTER VAN GERVEN* The emergence of a common European tort law is brought about by three factors, or driving forces, each of which has its own rationale. First, there is European Community (EC) law where the rationale for developing tort rules is to make a remedy in compensation available for individuals whose ‘Community rights’ have been infringed by Community Institutions, Member States or other individuals. Second, there is the law of the European Convention of Human Rights (ECHR) where the rationale is the preservation, through the award of damages, of ‘Convention rights’ of individuals against infringements by Contracting States. Third, there is comparative law. Today one rationale of comparative law beyond understanding one anothers’ legal systems is to promote convergence and homogeneity between legal systems of States which, as the Member States of the European Union, are engaged in a process of integration. Within such a framework of integration comparative law has become an instrument, in the area of tort law as in others, to prepare legislation and to enforce it, through remedies before domestic courts, in a sufficiently uniform manner in all of the Member States.1 In this contribution I will deal with the first factor of convergence only. I. THE DIRECTIVES ON PRODUCT LIABILITY AND E-COMMERCE: EUROPEAN COMMUNITY LEGISLATION AS A SOURCE OF COMMON RULES The most obvious and direct impact of EC law on the domestic laws of the Member States is when the EC legislature expressly requires Member States to include in their national tort law specified rules that prescribe certain conditions as giving rise to tortious liability on the part of all or some defined class of persons toward other persons … who are to enjoy the benefit of the required rules. Such legislation may leave Member States with some latitude in relation to the conditions that are to be prescribed in the definition of the required tortious liability (…).2 Andenas, Bell, Fairgrieve MS. Num. VanGerven 15 August 2002 Page 2 A prime example of Community legislation is Directive 85/374 concerning liability for defective products3 which so far has brought about the most far-reaching change in the tort law of the Member States as a result of EC harmonisation measures.4 Obviously, the alterations are limited to the specific issues covered by the Directive and, even then, subject to a number of elements which are left to the discretion of the Member States. The most important of these elements is whether a Member State wants to make available to producers the so-called ‘product liability risk defence’ allowing the producer to escape liability if ‘the state of scientific and technical knowledge at the time when he put the product into circulation, was not such as to enable the existence of the defect to be discovered’ (Article 7 (e); in combination with Article 15 (b) of the Directive). The defence was finally included in the national implementing legislation of, for instance, Germany, France and the UK. That does, of course, not preclude the European Court of Justice (ECJ) from interpreting the directive provision on which the defence is based, if the issue is raised before the Court either directly in an action, under Article 226 (ex 169) EC, against a Member State which has not correctly or not completely implemented the Directive, or by way of a preliminary ruling, under Article 234 (ex 177) EC, when the Directive needs interpretation in a litigation pending before a national court between public or private parties. The former occurred in case C-300/95, Commission v UK, which was decided by judgment of 29 May 1997.5 In that judgment the Court held that the state of scientific and technical knowledge of which the producer must prove that it was not such as to enable him to discover the defect, includes the most advanced level of knowledge generally, and not only in the industrial sector concerned; that such knowledge must be taken in an objective (and not merely a subjective) sense, ie. knowledge ‘of which the producer is presumed to have been informed’; provided, the Court added, that such knowledge was accessible to the manufacturer at the time when the product was put into circulation.6 Although the UK legislation implementing the Directive was not unambiguous7, the ECJ dismissed the EU Commission’s contention that Article 7(e) had not been properly implemented by the UK. To reach that conclusion the Court took into account that no material was produced to the Court indicating that the courts in the UK would not interpret the national implementing act in accordance with the wording and the purpose of the Directive.8 The Commission v UK case illustrates the way in which EC legislation, in conjunction with case law of the ECJ, influences the development of national tort law.9 That is obviously the Andenas, Bell, Fairgrieve MS. Num. VanGerven 15 August 2002 Page 3 case when a directive is properly transposed but also, as follows from the above judgment, when a directive is not transposed in a fully unambiguous manner, in that situation because of the duty for national courts to interpret domestic legislation in conformity with Community law. French legislation, which was long overdue to implement Directive 85/374,10 offers an example of how that duty may take effect even when the national legislator has not implemented the Directive at all. For indeed, ‘French courts, under the lead of the Cour de cassation took it upon themselves to interpret French law in such a way as to introduce Directive 85/374 in the case law’, mainly by extending ‘the contractual obligation de sécurité incumbent upon the manufacturer and trade seller beyond the contractual realm to third-party victims of defective products’.11 The Cour de cassation, in a judgment of 9 July 1996, went even so far that it used itself the discretion which the Directive had left to the Member States’ legislature, by holding that the defence of Article 7(e) was not available under French law.12 Insofar as it related to contaminated blood, the judgment was confirmed by Law of 19 May 1998: indeed, although the defence was introduced in Article 1386-11(4) of the French Code civil, Article 1386-12 did not make it available to the producer ‘if the injury was caused by a part of the human body or parts taken from the human body’. Harmonisation of national laws is far from perfect: it is often based on a compromise between national systems and, once effected, does not, of itself, guarantee convergence to remain for ever. An analysis of English, French and German law before and after the implementation of Directive 85/37413 shows for instance that: ‘Product liability…provides an excellent case-study of the interaction between Community and national laws. Against the background of fairly different national laws…, Directive 85/374 purported to create a harmonised regime, whose coherence was however affected by the specific dynamics of Community law-making, including the need to compromise’. Moreover, caveat emptor: ‘Its implementation nevertheless shows how quickly a harmonised text can start to be ‘de- harmonised’ again…’.14 A judgment of the German Bundesgerichtshof of 9 May 1995 offers an unfortunate example of such ‘de-harmonisation’ or ‘re-nationalisation’.15 In that judgment the German Supreme Court decided that the defence of Article 7(e) of the Directive, as included in § 1(2), under 5, of the Produkthaftungsgesetz of 15 December 1989, can be raised only where the loss arises from a design defect, not where it arises from a manufacturing defect. The Court made that decision of its own initiative, refusing to submit any question of interpretation to the ECJ, on the ground that, since Member States had been left free not to introduce the product Andenas, Bell, Fairgrieve MS. Num. VanGerven 15 August 2002 Page 4 development risk at all, a national court, when asked to interpret implementing legislation, could also of its own initiative determine whether that legislation had adopted the defence and to what extent.16 More recently the ECJ rendered another judgment, this time in a preliminary ruling procedure brought at the request of the Danish Supreme Court. The judgment concerns the interpretation of Article 7(a) of Directive 85/374, which excludes liability for a defective product that is ‘not put… into circulation’.17 The main question submitted to the ECJ was whether a defective product must be held to have been put into circulation where the product (in that case a perfusion fluid produced and prepared for use in hospitals owned by a municipality) was used in one of the hospitals in the course of a specific medical service (ie. in preparing a kidney for transplantation) and where the damage caused (the kidney becoming unusable for the operation) resulted from the preparation of the product. The ECJ answered that question in the affirmative adding, in reply to a second question, that the exemption from liability referred to in Article 7(c) of the Directive (concerning activities having no economic purpose) does not cover the use of a defective product in the course of a medical service just because that service in the municipal hospital is entirely financed from public funds. When liability arises in consequence of the Directive, as implemented in national law, the producer ‘shall be liable for damage caused by a defect in his product’ (Article 1), which means, according to Article 9, that he must compensate ‘damage caused by death or by personal injuries’ and ‘damage to, or destruction of, any item of property other than the defective product itself, with a lower threshold of 500 [Euro]’.
Load more

Recommended publications
  • Unity in Tort, Contract, and Property: the Model of Precaution
    California Law Review VOL. 73 JANUARY 1985 No. 1 Copyright © 1985 by California Law Review, Inc. Unity in Tort, Contract, and Property: The Model of Precaution Robert Cootert Much of the common law is concerned with allocating the costs of harm, such as the harm caused by accidents, nuisances, breaches of con- tract, or governmental takings of private property. There are at least two distinct goals for adopting allocative cost rules: the equity goal of com- pensating victims and the efficiency goal of minimizing costs to society as a whole.' These goals in turn can be formulated as two principles: the compensation principle and the marginal principle. The compensation principle states that victims should be compensated for harm caused by others. The marginal principle states that social costs should be mini- mized by equating the incremental benefit of each precautionary activity to its incremental cost. Is the common law primarily concerned with the justice of compen- sation or the efficiency of cost minimization? Presented this way, the two principles appear to be rival theories of law.' This Article, however, poses a different question: How does the common law combine the goal of compensation with the goal of minimizing social costs? The two prin- ciples now appear as complementary, rather than rival, explanations. As a result, this Article assumes that there are circumstances in which com- pensation is required for reasons of justice and examines mechanisms t Professor of Law, Boalt Hall School of Law, University of California, Berkeley. B.A. 1967, Swarthmore College; B.A. 1969, Oxford University; Ph.D.
    [Show full text]
  • European Union (Withdrawal) Bill – 'Francovich' Claims
    European Union (Withdrawal) Bill – ‘Francovich’ Claims The European Union (Withdrawal) Bill excludes the right to claim damages under the rule in Francovich from being converted into UK law. Under the Francovich rule, a state may be liable for damages where it has failed to implement an EU directive within a specified time (and other conditions are met). Will Francovich be relevant post-Brexit? Francovich claims are only relevant where a Member State has failed to implement an EU directive within the time period for implementation. As such, its exclusion presumably will not be of great relevance post-Brexit when the UK will not be under any obligation to do so. However it may have the following residual relevance: • The exclusion of it via the Bill may prevent retrospective claims for current noncompliance with EU law. • The Francovich principle for damages is based on an ECJ case law concept. For instance a Government breech being ”sufficiently serious” to warrant damages. ”Sufficiently serious” is an ECJ concept and so may develop post Brexit. Removing it would unambiguously take the UK courts away from following the ECJ. It may, however, be a general move to reduce EU law related litigation and bring EU law in line with UK law and remedies. Provisions of European Union (Withdrawal) Bill 2017 (‘EUW Bill’) In accordance with paragraph 4 of Schedule 1 of the EUW Bill: • “There will be no right in domestic law on or after exit day to damages in accordance with the rule in Francovich.” • Schedule 1 of the EUW Bill has effect through s 5(6) (see ss 2(3), 3(5) and 4(3) of the EUW Bill, which state that the retention and conversion of EU law is subject to the exceptions in clause 5 and Schedule 1).
    [Show full text]
  • Spillover Or Backlash? Karen J
    The European Union’s Legal System and Domestic Policy: Spillover or Backlash? Karen J. Alter The legal system of the European Union (EU) offers domestic actors a powerful tool to influence national policy. European law can be drawn on by private litigants in national courts to challenge national policies. These challenges can be sent by na- tional judges to the European Court of Justice (ECJ), which instructs national courts to apply European law instead of national law, or to interpret national law in a way compatible with European law. Combining victories in front of the ECJ with political mobilization and pressure, litigants and groups have used the European legal system to force their governments to change national policies. Using Europe’s legal tool involves overcoming four successive thresholds: First, there must be a point of European law on which domestic actors can draw and favorable ECJ interpretations of this law. Second, litigants must embrace EU law to advance their policy objectives, using EU legal arguments in national court cases. Third, national courts must support the efforts of the litigants by referring cases to the ECJ and/or applying the ECJ’s legal interpretations instead of conflicting national policy. Fourth, litigants must follow through on their legal victory, using it as part of a larger strategy to pressure the government to change public policy.1 A litigation strategy can fail at any of the four steps. When private litigants can surmount these four thresholds, the EU legal system can be a potent tool for forcing a change in national policy. Stated as such, these four steps may sound onerous.
    [Show full text]
  • The Principle of Unjust Enrichment from the European Codes to the European Civil Code
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Directory of Open Access Journals Irina Anghel 535 THE PRINCIPLE OF UNJUST ENRICHMENT FROM THE EUROPEAN CODES TO THE EUROPEAN CIVIL CODE IRINA ANGHEL* Abstract Despite a very long history and the unanimous recognition of solid moral grounds, the principle of unjust enrichment found its place in the legal systems only very late and its acceptance occurred after many hesitations and imposed many conditions for its application. This paper takes a comparative view at the way the principle of restitution (according to which the unjustified enrichment is not allowed) is reflected in three leading continental European legal systems (French, German and Swiss) and the possible role this principle will play in a future European Civil Code. Keywords - restitution, codification, Europe, unjustified enrichment, principles. Introduction Lawmakers have always avoided the legislative sanction of principles that are too general as they did not wish to undermine the legal system by introducing principles whose general applicability would have called into question many of the special legal institutions. It is however undeniable that, although it was not taken up as a principal tenet of law, unjust enrichment represented a “formative force behind a variety of rules and institutions of positive law”1. Originating in the Roman Law, the moral principle of restitution is currently recognised under all modern legal systems represented in Europe. Nevertheless, its recognition by the jurisdictions of the Old Continent is inconsistent. Even though differently reflected in various legal systems of European states, the principle of restitution could, and in our opinion should, be regarded as one of the fundamental pillars of the European Civil Code, if such a code is ever to be enacted.
    [Show full text]
  • Elements of Negligence Under the Tort of Negligence, There Are Four Elements a Plaintiff Must Establish to Succeed in Holding a Defendant Liable
    Elements of Negligence Under the tort of negligence, there are four elements a plaintiff must establish to succeed in holding a defendant liable. The Court of Appeals of Georgia outlined the elements for a prima facie case of negligence in Johnson v. American National Red Cross as follows: “(1) a legal duty to conform to a standard of conduct; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury; and (4) damage to the plaintiff.” Johnson, 569 S.E.2d 242, 247 (Ga. App. 2002). Under the first element, a legal duty to a standard of due care, the plaintiff must prove the defendant had a duty to conform to a standard of conduct for protection of the plaintiff against an unreasonable risk of injury. The duty of care will be determined by the applicable standard of care and several factors can heighten the standard of care depending upon the relationship between the parties, whether the plaintiff was foreseeable, the profession of the defendant, etc. For example, the Red Cross has a duty, when supplying blood donations to hospitals, to make its best efforts to ensure blood supplied is not tainted with any transferable viruses or diseases, such as an undetectable rare strain of HIV. A breach of the duty of care occurs when the defendant’s actions do not meet the required level of applicable standard of care due to the plaintiff. Whether a breach of the duty of the applicable standard of care occurs is a question for the trier of fact.
    [Show full text]
  • Municipal Tort Liability -- "Quasi Judicial" Acts
    University of Miami Law Review Volume 14 Number 4 Article 8 7-1-1960 Municipal Tort Liability -- "Quasi Judicial" Acts Edwin C. Ratiner Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Edwin C. Ratiner, Municipal Tort Liability -- "Quasi Judicial" Acts, 14 U. Miami L. Rev. 634 (1960) Available at: https://repository.law.miami.edu/umlr/vol14/iss4/8 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. MUNICIPAL TORT LIABILITY-"QUASI JUDICIAL" ACTS Plaintiff, in an action against a municipality for false imprisonment, alleged that lie was arrested by a municipal police officer pursuant to a warrant known to be void by the arresting officer and the municipal court clerk who acted falsely in issuing the warrant. Held: because the acts alleged were "quasi judicial" in nature, the municipality was not liable under the doctrine of respondeat superior. Middleton Y. City of Fort Walton Beach, 113 So.2d 431 (Fla. App. 1959). The courts uniformly agree that the tortious conduct of a public officer committed in the exercise of a "judicial" or "quasi judicial"' function shall not render either the officer or his municipal employer liable.2 The judiciary of superior and inferior courts are generally accorded immunity from civil liability arising from judicial acts and duties performed within the scope of the court's jurisdiction.
    [Show full text]
  • The United States Supreme Court Adopts a Reasonable Juvenile Standard in J.D.B. V. North Carolina
    THE UNITED STATES SUPREME COURT ADOPTS A REASONABLE JUVENILE STANDARD IN J.D.B. V NORTH CAROLINA FOR PURPOSES OF THE MIRANDA CUSTODY ANALYSIS: CAN A MORE REASONED JUSTICE SYSTEM FOR JUVENILES BE FAR BEHIND? Marsha L. Levick and Elizabeth-Ann Tierney∗ I. Introduction II. The Reasonable Person Standard a. Background b. The Reasonable Person Standard and Children: Kids Are Different III. Roper v. Simmons and Graham v. Florida: Embedding Developmental Research Into the Court’s Constitutional Analysis IV. From Miranda v. Arizona to J.D.B. v. North Carolina V. J.D.B. v. North Carolina: The Facts and The Analysis VI. Reasonableness Applied: Justifications, Defenses, and Excuses a. Duress Defenses b. Justified Use of Force c. Provocation d. Negligent Homicide e. Felony Murder VII. Conclusion I. Introduction The “reasonable person” in American law is as familiar to us as an old shoe. We slip it on without thinking; we know its shape, style, color, and size without looking. Beginning with our first-year law school classes in torts and criminal law, we understand that the reasonable person provides a measure of liability and responsibility in our legal system.1 She informs our * ∗Marsha L. Levick is the Deputy Director and Chief Counsel for Juvenile Law Center, a national public interest law firm for children, based in Philadelphia, Pa., which Ms. Levick co-founded in 1975. Ms. Levick is a graduate of the University of Pennsylvania and Temple University School of Law. Elizabeth-Ann “LT” Tierney is the 2011 Sol and Helen Zubrow Fellow in Children's Law at the Juvenile Law Center.
    [Show full text]
  • Specific Tort Paper Code: L-4006 Topic : Deceit Or Fraud
    LL.M. IV SEMESTER SUBJECT: SPECIFIC TORT PAPER CODE: L-4006 TOPIC : DECEIT OR FRAUD The making of a representation which a partly knows to be untrue and which is intended or calculated to induce another to act on the faith of it so that he may incur damage is fraud in law. Defined in Polhill v. Walter In case of Derry v. Peek, Lord Herschell laid down rules to recognize deceit: First In order to sustain an action of deceit, there must be proof of fraud Second Fraud in proved when it is shown that a false representation has been mad (1) Knowingly (2) Without belief in its truth (3) Recklessly, careless whether it is true or false. Third If fraud is proved the motive of the person guilty of it is immaterial. To create right of action for deceit there must be a fraudulent representation and representation in order to be fraudulent must be: (1) Which is untrue in fact (2) Which defendant knows to be untrue (3) Which was intended or calculated to induce plaintiff as third person (4) Which the plaintiff or the third person acts on and suffers damages. Fraud by Agent- The fraud of an agent acting within scope of his employment is the fraud of the principal. (1) The principal knows that representation to be false. (a) He authorize the making of it. (b) The representation was made in the general course of his employment without specific authorization them principal will be held liable. (2) The Principal thinks the representation to be true.
    [Show full text]
  • Federalism in the European Union and the United States Subsidiarity
    MILLS.DOC 1/13/2011 6:46 PM FEDERALISM IN THE EUROPEAN UNION AND THE UNITED STATES: SUBSIDIARITY, PRIVATE LAW, AND THE CONFLICT OF LAWS ALEX MILLS* ABSTRACT The United States has long been a source of influence and inspiration to the developing federal system in the European Union. As E.U. federalism matures, increasingly both systems may have the opportunity to profit from each other’s experience in federal regulatory theory and practice. This article analyzes aspects of the federal ordering in each system, comparing both historical approaches and current developments. It focuses on three legal topics, and the relationship between them: (1) the federal regulation of matters of private law; (2) rules of the conflict of laws, which play a critical role in regulating cross-border litigation in an era of global communications, travel and trade; and (3) “subsidiarity,” which is a key constitutional principle in the European Union, and arguably also plays an implicit and under- analyzed role in U.S. federalism. The central contention of this Article is that the treatment of each of these areas of law is related —that they should be understood collectively as part of the range of competing regulatory strategies and techniques of each federal * Slaughter and May Lecturer in Law, Selwyn College, University of Cambridge ([email protected]). An early version of this Article was presented at the Journal of Private International Law Biennial Conference, New York University, April 2009, and I would like to thank the participants in that conference for their comments, particularly Professor Ralf Michaels. I am also grateful for further helpful comments provided by Professor Geert de Baere, Professor Donald Earl Childress III, Mr.
    [Show full text]
  • A Common Frame of Reference for European Private Law—Academic Efforts and Political Realities
    A Common Frame of Reference for European Private Law—Academic Efforts and Political Realities Christian von Bar* I. THE AIMS AND PURPOSES OF THE COMMON FRAME OF REFERENCE ......................................................................................... 37 II. A COMMON FRAME OF REFERENCE, NOT A EUROPEAN CIVIL CODE ................................................................................................... 39 III. DRAFTING STYLE AND COVERAGE ..................................................... 41 IV. STRUCTURE ......................................................................................... 46 V. NEXT STEPS ........................................................................................ 47 VI. AND THEN? ......................................................................................... 49 I. THE AIMS AND PURPOSES OF THE COMMON FRAME OF REFERENCE Today’s keyword for the Europeanisation of Private Law is the “Common Frame of Reference”, an expression which, although it looks alien at first sight, covers surprisingly well what we are hoping to achieve. That is a text serving as a source of inspiration for law making and law teaching at all levels. We, the academic teams that in 2005 contracted with the European Commission to deliver up by the end of 2007 a first draft of the Academic Common Frame of Reference, hope to bring about a framework set of annotated rules to which the European and national legislators and the European and national courts, including arbitral tribunals, can refer to when in search
    [Show full text]
  • Environmental Rights in the European Community Dinah L
    Hastings International and Comparative Law Review Volume 16 Article 6 Number 4 Summer 1993 1-1-1993 Environmental Rights in the European Community Dinah L. Shelton Follow this and additional works at: https://repository.uchastings.edu/ hastings_international_comparative_law_review Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation Dinah L. Shelton, Environmental Rights in the European Community, 16 Hastings Int'l & Comp.L. Rev. 557 (1993). Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol16/iss4/6 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings International and Comparative Law Review by an authorized editor of UC Hastings Scholarship Repository. Environmental Rights in the European Community By DNAH L. SI-ELTON* The Treaties creating the European Community' contain neither a catalogue of human rights nor a reference to environmental protec- tion. This is not surprising, given the focus of the Community,' as well as its relatively early date of inception. The language closest to both subjects is contained in article 36 of the Treaty of Rome, which states that provisions of the Treaty "shall not preclude prohibitions or re- strictions ...justified on grounds of... the protections of health and life of humans, animals or plants."'3 Despite their general absence from Community documents, both human rights and environmental protection have found their way into Community law as it has evolved over more than three decades. The evolution has not produced a de- clared human right to an environment of a particular quality; how- ever, it has resulted in certain guaranteed environmental rights,4 including the right to receive environmental information, the right to participate in decisions affecting the environment, and the right to ac- * Professor of Law, Santa Clara University.
    [Show full text]
  • A "Social Dimension" in European Private Law?: the Call for Setting a Progressive Agenda, 41 New Eng
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2006 A "Social Dimension" in European Private Law?: The alC l for Setting a Progressive Agenda Ugo Mattei UC Hastings College of the Law, [email protected] Fernanda Nicola Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Recommended Citation Ugo Mattei and Fernanda Nicola, A "Social Dimension" in European Private Law?: The Call for Setting a Progressive Agenda, 41 New Eng. L. Rev. 1 (2006). Available at: http://repository.uchastings.edu/faculty_scholarship/1284 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. ARTICLE A "SOCIAL DIMENSION" IN EUROPEAN PRIVATE LAW? THE CALL FOR SETTING A PROGRESSIVE AGENDA UGO MATTEI* AND FERNANDA NICOLAt Alfred and Hanna Fromm Professor of International and Comparative Law, U.C. Hastings; Professore Ordinario di Diritto Civile, Universita' di Torino. Part of this paper has been written at the Centro Linceo Interdisciplinare Segre, Accademia Nazionale dei Lincei, Rome, where I am currently serving as a Research Associate. A lecture based on this paper has been delivered at the New England School of Law, March 2, 2006 and a talk at the Harvard Law School at the Symposium on Legal Diffusion of the Harvard International Law Journal, March, 4, 2006. Associate Professor, Washington College of the Law, American University, Adjunct Professor at New England School of Law. We wish to thank Duncan Kennedy, Mauro Bussani, Daniela Caruso, Michele Graziadei, Maria Rosaria Marella, Arnulf Becker Lorca and Anna di Robilant for ongoing conversations on this topic and their helpful comments on this work.
    [Show full text]