by Radosveta Vassileva*
(2019) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite
This paper examines the distinct roles, which the Roman doctrine of ‘causa’ acquired in English and Bulgarian contract law, to challenge popular beliefs entertained by common law and comparative scholars and to demonstrate the peculiar mechanisms through which the conception of fairness in contract law evolves. While leading contemporary English scholars argue that the doctrine of consideration is a unique common law doctrine, an historical inquiry reveals that it is a direct descendant of Roman ‘causa’, which also made its way into continental systems. At the same time, many comparative scholars assert that, despite differences that may exist on the surface, the common law doctrine of consideration and the continental doctrine of ‘cause’ often reach the same results in similar circumstances. By using Bulgarian law as a case study, which has been subjected to the competing influences of Romanistic and Germanic legal traditions, this paper shows why this argument is misleading. Notably, in England, consideration remains primarily a question of form. In Bulgaria, however, turbulent political changes have created opportunities for scholarly and judicial activism. Thus ‘causa’ was moulded into a powerful tool against substantive unfairness in agreements which courts rely on even in modern times.
by Robert Diab*
(2018) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article
Courts in Canada and the United States currently hold warrantless and groundless device searches at the border to be reasonable. They do so by assuming the state’s pressing interest in search at the border extends to the search of device data at the border. Apex courts in both nations have yet to address the issue. Yet in recent cases on device searches on arrest (Fearon and Riley) both courts have made holdings about privacy and the state interest in device searches that run contrary to assumptions in the border search cases. In the wake of Fearon and Riley, courts in border cases have conceded the greater privacy in device data but have tended not to question assumptions about the state interest in data search at the border.
This paper examines the development of the law on border device searches in both nations with three aims. The first is to show that governments and courts have not been sufficiently critical of state interest in assessing reasonable border data searches. The second aim is to consolidate critical opinion on the nature of the state’s interest in border data searches, and to add the argument that the state has a less pressing interest in data search here than in the search of a person’s body, calling for a higher standard than reasonable suspicion. The third aim is to demonstrate that in recent reform efforts in Parliament and Congress, lawmakers have begun to question whether groundless border device searches are reasonable but have lacked clarity on state interest. The paper concludes by suggesting that reasonable search should be assessed in this context by foregrounding the question of state interest and taking an evidence-based approach, and that doing so supports a warrant standard.
by Thomas S. Woods **
(2017) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article
by Khalid Ghanayim* and Mordechai Kremnitzer**
(2016) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article
by Peter L Reich*
(2015) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article
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by Paul Hughes*
(2014) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article
by Baroness Hale of Richmond*
(2013) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article
Willem H. van Boom*
(2010) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article
One of the ways in which legal services are financed, and indeed shaped, is through private insurance arrangements. Two contrasting types of legal expenses insurance contracts (LEI) seem to dominate in Europe: before the event (BTE) and after the event (ATE) legal expenses insurance. Notwithstanding institutional differences between different legal systems, BTE and ATE insurance arrangements may be instrumental if government policy is geared towards strengthening a market-oriented system of financing access to justice for individuals and business. At the same time, emphasizing the role of a private industry as a keeper of the gates to justice raises issues of accountability and transparency, not readily reconcilable with demands for competitive markets. Moreover, multiple actors (clients, lawyers, courts, insurers) are involved, causing behavioural dynamics which are not easily predicted or influenced.
Against this background, this article looks into BTE and ATE arrangements by analysing the particularities of BTE and ATE arrangements currently available in some European jurisdictions against the backdrop of their respective markets and legal contexts. This allows for some reflection on the performance of BTE and ATE providers as both financiers and keepers of the gates to justice. Two issues emerge from the analysis that are worthy of some further reflection. Firstly, the long-term sustainability of some ATE products appears problematic. Secondly, policymakers that would like to nudge consumers into voluntarily taking out BTE LEI are facing certain challenges.
JEL classification: G22, K12, K41
Keywords: legal expenses insurance, conditional fee arrangement, after the event insurance
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