The American Journal of Comparative Law

From our latest issue

Volume 69, Issue 3, September 2021

Articles

• Proportionality in the Age of Populism

  Moshe Cohen-Eliya, Iddo Porat

  Pages 449–477, https://doi.org/10.1093/ajcl/avac005

  The European-based proportionality doctrine seems to be in vogue in American constitutional scholarship. Recently, the Harvard Law Review has devoted its Foreword by Jamal Greene, to this doctrine. In a provocative and bold article, titled “Rights as Trumps?,” Greene argued that proportionality analysis should be openly adopted in the United States as a more sophisticated and up-to-date doctrine than the rights-as-trumps categorical approach. Current constitutional adjudication, he contended, requires a nuanced and factually based analysis of the sort afforded by proportionality. We argue, contrary to this argument, that proportionality may not be the best doctrinal candidate in the United States, taking into consideration the populist shift in the United States. We wish to make a more general point about the use of proportionality in the new global age of populism. The rise of populism, and the increasing signs of democratic backsliding across the globe, require the employment of a more categorical approach that better serves the purpose of red lining and enhances the democratic process.

• The Purposive Transformation of Corporate Law

  David Kershaw, Edmund Schuster

  Pages 478–538, https://doi.org/10.1093/ajcl/avac004

  What is the purpose of a corporation? This fundamental question is as old as corporate law itself, and traditionally it is asked with reference to the ultimate beneficiaries of a corporation’s activities. Modern management theory and the current technology-driven transformation of the economy, however, have breathed new life into the question about corporate purpose. Here, purpose is understood as an animated mission-purpose articulation of the reason for a corporation’s existence; an aspirational idea about its existence that has the capacity to bond internal and external stakeholders to the company, inspiring innovation, productivity, and customer loyalty. This understanding of corporate purpose offers a pathway to a more inclusive and interconnected form of modern capitalism.

• Buddhist Rules About Rules: Procedure and Process in the (Theravāda) Buddhist Legal System

  Benjamin Schonthal

  Pages 539–573, https://doi.org/10.1093/ajcl/avab025

  This Article examines rules of procedure and process that structure the Buddhist legal system in the Theravāda tradition, the dominant tradition of Buddhism in South and Southeast Asia. Drawing on important Buddhist texts written in Pāli as well as evidence from monastic legal practices in contemporary Sri Lanka, it argues that one can find within the Theravāda tradition a robust body of what H.L.A. Hart would call “secondary rules,” which determine how monks ought to apply prohibitions, manage disputes, and administer sanctions.

• Judging as Crime: A Transatlantic Perspective on Criminalizing Excesses of Judicial Discretion

  David J Stute

  Pages 574–614, https://doi.org/10.1093/ajcl/avac003

  Drawing on over a century and a half of Germany’s experience with a statute that criminalizes (mis)judging, this Article seeks to substantiate that criminal penalties for judges were largely ineffectual, and that courts proved ill-suited to police themselves even with a judiciary-specific criminal statute in place.

• The Contested Concept of Secularism and Bangladesh

  Md Jahid Hossain Bhuiyan

  Pages 399–448, https://doi.org/10.1093/ajcl/avab014

  Issue Section: There are different ways in which scholars comprehend secularism. According to some scholars, secularism is the phenomenon in which religion is fully separated from the state and plays no part in the public domain. This Article aims to discuss the various interpretations of secularism, create a classification of secularism models, and examine how secularism is considered in Bangladesh.