Category Archives: Authors

Can We Compare Fictional Laws?

Johanna Fournier*

Abstract: The ever-growing law and literature movement covers a range of artistic works and research in this field can discuss about any area of law. Nevertheless, only few attempts have yet been made to look at law and literature from a comparative law perspective. With regard to so-called fictional law, this may seem understandable, as only in rare cases will the reader or viewer be presented with a word-by-word print of the written law or case law of a fictional world. Yet, some (earthly) lawyers did make the effort and published scientific articles or even whole books on the laws in Star Trek’s universe, the Hobbits’ Middle-earth, or Harry Potter’s wizarding world.

Hence, the question arises of what exactly is fictional law and how do we identify it? Can we compare it like any other domestic or foreign law? Do we even want to do that? As the name implies, the essence of comparative law is to compare the law of different jurisdictions with one another. This can be done on several levels, for various purposes and through different methods. Is fictional law enough of a law to bear such a comparison? Can it even add value to the process?

(2025) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

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The Sad Future of Unjustified Enrichment in Brazil: Criticising the Brazilian Civil Code Reform

João Costa-Neto*

Abstract: Brazil’s current Civil Code is going through a legislative overhaul. As concerns unjustified enrichment, a comparative review of notably German and the common law reveals three of the reform’s shortcomings: (a) it failed to develop or propose a Brazilian taxonomy on unjustified enrichment law (and to comprehend and elaborate on its rationale); (b) it neglected to determine the measure of restitution in cases of unjustified enrichment by infringement of another’s right (reasonable fee or disgorgement of profits?); and (c) it proposed a redundant and implausible dies a quo (commencement date) for interest rates in cases of unjustified enrichment. While the Brazilian Civil Code should undergo comprehensive reform on unjustified enrichment law, the current proposals are heading in the wrong direction. Just as Brazilian legislators should seize the opportunity to correct old mistakes, they should avoid rushing into making several new ones.

(2024) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

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Freedom of the Press and the Protection of Personality Rights in Türkiye from the Perspective of the European Court of Human Rights

by Ferhat Canbolat* and Günhan Gönül Koşar**

Abstract This article seeks to explore the freedom of the press and the protection of personality rights in Türkiye from the perspective of the ECtHR. First, this article reviews the freedom of the press in Türkiye. Second, it examines personality rights as a limit to the freedom of the press under Turkish law. To this end, the concept of personality rights, their protection and personality rights as a limit to the freedom of the press are analysed. Third, it examines the ECtHR’s approach to limits to the freedom of the press and how this compares with the approach of Turkish courts. Finally, it analyses the ECtHR’s Sağdıç v. Turkey judgment.

Keywords: freedom of the press, personality rights, privacy, reputation, journalism.

(2024) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

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Decriminalizing “Mere” Walkaway Prison Escapes Is a Mistake

By Dr. T. Markus Funk*

(2023) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Image link.

On the last day of August 2023, video captured 34-year-old convicted killer Danelo Cavalcante escaping his Pennsylvania maximum security prison by crab-walking up two walls separated by a five-foot hallway.[1] Cavalcante was serving a life sentence for his brutal April 2021 stabbing murder of ex-girlfriend Deborah Brandao, an attack that took place in front of her two small children.[2] He additionally is wanted in his native Brazil for felling a friend in a hail of bullets. (Only his 2018 decision to illegally enter the United States has thus far allowed him to avoid facing those charges.)

Cavalcante was and is a dangerous, hardened criminal—which explains why his escape made international news during the two weeks he was able to evade recapture despite the ongoing “intense manhunt.”[3]

The United States is a country grappling with criminal justice reform efforts, many of which are sensible, morally compelled, and overdue. But it would be a mistake to accept the invitation to follow the examples of countries like Germany, Switzerland, Mexico, The Netherlands, and Austria which do not outlaw non-violent prisoner escapes such as Cavalcante’s.[4]
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Busting the Durable Myth That U.S. Self-Defense Law Uniquely Fails to Protect Human Life

by T. Markus Funk*

(2023) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

Self-defense, the “first civil right,” continues to be among criminal law’s most controversial, enduring , and intuitively understood topics.[1] The February 2020 murder of Ahmaud Arbery,[2] the November 2021 Wisconsin trial of Kyle Rittenhouse,[3] the January 2023 shooting of a masked robber in a Houston taqueria,[4] and the February 2023 second-degree murder charges lodged against 73-year-old Arizona rancher George Alan Kelly for killing an allegedly trespassing migrant near the US-Mexico border[5] all have helped bring to full boil the long-simmering national debate about where the state’s monopoly on force should end and the individual’s right to rely on self-preferential force should begin.

After each of these incidents, members of the legal commentariat followed the familiar practice of swiftly offering their takes on all aspects of these flashpoint cases. Much of what they said about these cases, for good reason, sparked spirited discussion.

There is, however, one disrupting note in the constant drumbeat of lawyers, legislators, academics, reporters, and other legal observers that is routinely and frustratingly out of sync: the claim that U.S. self-defense law[6] is exceptionally severe by international standards and comparatively underappreciative of the value of human life and the need to prevent violence.

The problem with this narrative is that it fails to recognize that U.S. self-defense law is, in fact, very much within the international mainstream and, in many respects, is significantly more protective of attackers and more carefully calibrated to reduce overall societal violence than the self-defense laws of many other nations. In terms of impact, such erroneous claims seriously distract from the much-needed debate over U.S. self-defense law’s deeper public policy and moral grounding.

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Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine

by Julia Motte-Baumvol*, Tarin Cristino Frota Mont’Alverne**, and Gabriel Braga Guimarães***

(2022) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

The war in Ukraine has brought about an unprecedented change in the way the European Union addresses migration-related issues. Following the invasion of Ukraine by Russian forces in late February 2022, the Council of the European Union adopted an Implementing Decision establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Council Directive 2001/55/EC, for the first time activating its temporary protection mechanism. While the Directive’s provisions reflect the founding principles of the European Union, the specific vulnerabilities of international migrants require suitable social provisions to afford them a standard of living as required to ensure their health and well-being for the duration of the protection provided by the Directive. The purpose of this article is to discuss the nature of the challenges arising from this first application of the ‘Temporary Protection Directive’, as well as the impact of these challenges on the Directive’s efficacy and on the scope of the protection for the displaced persons covered by it. It argues, first, that the joint interpretation of the Directive and the Council Decision significantly limits the personal scope of the protection, leaving certain categories of migrants behind. The paper then goes on to examine the Directive’s substance and suggests that a broad interpretation of its social protection provisions reveals new difficulties regarding the financing and sustainability of this protection and its sustainability.

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One set of principles to rule them all? Parliamentary practices in France and the United Kingdom

by Marie-Elisabeth Boggio*

(2022) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

This paper is a short overview of my research on parliamentary practices and the comparison I make between practices in the French Parliament and in the UK Parliament. We know that both are governed by written rules. On the one hand, the UK Houses of Parliament are run according to Standing Orders and certain Parliament Acts. On the other hand, the French Chambres are governed by Internal Rules and several organic laws which are enforced by the Conseil constitutionnel(Constitutional Council). But these written rules are not enough to describe precisely and comprehensively the running of Parliaments: more rules are needed to govern the respective Houses/Chambres. These rules are unwritten and we call them “parliamentary practices”. This paper will describe the concept of “parliamentary practices”, a category on which little research has been carried out, at least in France. It will also explain the reason why a comparison between France and the United Kingdom might be of interest on this topic. Finally, there will be a comparative study of some practices to demonstrate their significance for parliamentary proceedings in both countries.

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The Case for Market for Corporate Control in Korea

by Hwa-Jin Kim*

This article is published simultaneously in 8 Journal of Korean Law (2009) 227-276.

(2009) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

This Article offers an assessment of the preliminary evidence that the market for corporate control functions as a disciplinary mechanism for poor corporate governance in Korea. It analyzes SK Corporation’s fight against Sovereign Asset Management, contest for control over the Hyundai Group, KT&G’s fight against Carl Icahn, and LG Group and Carlyle’s proxy contest against Hanaro Telecom, together with relevant laws and regulations. These high-profile cases dramatically exemplified the role of takeovers in the improvement of the corporate governance of Korean companies, and brought about active policy discussions in respect of the market for corporate control and takeover defenses. This Article will also provide a quick overview over the provisions in draft new Korean Commercial Code related to the market for corporate control and takeover defenses, including squeeze-out, poison pills, and dual-class commons. This Article argues that as the increasing exposure of control to the market could eliminate the inefficient controlling shareholder system in Korea, the new Korean Commercial Code should strike a balance between the active market for corporate control and effective takeover defensive tactics for the benefit of all shareholders and the value of the company.

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‘But We’ve Spent the Money’: Defending Overpaid Tax Claims under English and German Law

by Sabrina Nanchahal*

(2020) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

Despite extensive litigation concerning restitution claims against the tax authority in the English courts, the role and parameters of the change of position defence have not been satisfactorily established in this context. German law provides a clear example of how these issues can be addressed within a public law restitution framework. This article explores the conceptual basis for the German position before turning to the current English framework. An analysis of the application of the defence according to unjust enrichment principles emphasises the practical and conceptual difficulties the English courts have faced in such claims. In light of these issues, two alternative potential developments of the defence are examined with the aim of achieving a conceptually cohesive common law restitution framework.

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