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Courts and Comparative Law$
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Mads Andenas and Duncan Fairgrieve

Print publication date: 2015

Print ISBN-13: 9780198735335

Published to Oxford Scholarship Online: October 2015

DOI: 10.1093/acprof:oso/9780198735335.001.0001

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Comparative Legal Reasoning and the Courts

Comparative Legal Reasoning and the Courts

A View from the Americas

Chapter:
(p.569) 30 Comparative Legal Reasoning and the Courts
Source:
Courts and Comparative Law
Author(s):

H. Patrick Glenn

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198735335.003.0030

This chapter examines attitudes towards comparative legal reasoning in the Americas, notably those that prevail with respect to aboriginal or chthonic peoples, and those which prevail amongst the European legal traditions received in the Americas. It also discusses comparative legal reasoning in the context of free trade. It shows that concern with the citation of foreign decisions is a concern mainly of common law jurisdictions. Common law jurisdictions will cite foreign materials; civil law jurisdiction will generally not. Jurisdictions of the Americas would not deviate from this pattern, though the opposition to citation in the US indicates that it is not remaining entirely true to its origins as a common law jurisdiction but is being influenced by the wave of civilian method and substance which it experienced in the 19th century, which taught above all that law should be conceived as a national phenomenon.

Keywords:   comparative law, legal reasoning, aboriginal peoples, chthonic peoples, European legal traditions, common law jurisdictions, civil law, free trade, citations

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