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LAW 707 - Comparative Law (Prof. Ludsin, Spring 2017)   Tags: comparative law, foreign law  

Last Updated: Jun 7, 2017 URL: http://guide.library.law.emory.edu/Spring2017/LAW707/ComparativeLaw Print Guide RSS Updates

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The Basics

Foreign law is the law of a non-U.S. jurisdiction as it is applied in that jurisdiction, and in other jurisdictions (including in U.S. and international courts) under choice of law rules.  Comparative law is not a separate body of rules and principles, but is a method of the comparative study of two or more different legal systems.  Some sources also refer to the law of other countries as international law, global law, or world law.

Research in foreign or comparative law usually involves searching for the primary materials of other countries: constitutions, statutes, codes, regulations, and court judgments or opinions.  Research can also involve searching for translations of primary materials, and use of secondary sources, either legal publications of other countries, or U.S. publications on the law of other countries. Comparative law sources include treatises and other secondary sources on methods of comparing legal systems.

Points to remember:

  • Foreign law jurisdictions may be either civil law or common law jurisdictions, or sometimes use customary or religious law or a mix of those with civil or common law.   In civil law jurisdictions, stare decisis may not apply, so court decisions may include few citations and little background on the facts of the case.  Full-text opinions may not be published.  Codes are usually well-organized and each article may provide a complete picture of that area of the law.  The official legal publication for statutes and sometimes regulations or case law is an official gazette or official journal.  For more explanation of civil law systems, see the Federal Judicial Center’s A Primer on the Civil-Law System
  • In common law jurisdictions, stare decisis applies:  case law serves as precedent for later decisions and decisions of lower courts.  There are sources like Shepards and Keycite for verifying the status of case law precedents. Codes and statutes also serve as legal authority.
  • Official sources of other countries are published in their official languages.  English-language translations may not be current, reliable, or even available.  There may be limited published sources of law for some countries, especially for case law of civil law countries. 
  • Use Google Translate and other machine translation with caution: to find documents and to get a general understanding of their meaning.
 

Evaluate Your Sources

Evaluating foreign legal resources for authority:

  • Start with secondary sources, but be sure to review the primary and official sources of the law: Official Gazettes, Codes, caselaw.
  • Remember that translations are not official. Good translations, by human translators, may be reliable, but machine translation is best used  for finding resources and getting a general idea of their content. Do not rely on machine translation for important documents and case filings.
  • Published works selected by the law library and resources found in subscription databases can usually be relied on. Internet sources require additional scrutiny as to their source.
  • Look for secondary sources from university presses and other standard publishers of legal materials.
  • Check the credentials of the author of secondary sources.
  • Look for works that have been frequently cited.
  • Look for resources recommended by research guides and reliable secondary sources.
  • Check publication dates and "last updated" dates.

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