Papers by Thomas Lundmark
Social Science Research Network, 1995
Social Science Research Network, 2001
Social Science Research Network, 1997
Social Science Research Network, 1998
Die detaillierte Natur anglo-amerikanischer Kaufverträge. The detailed nature of Anglo-American s... more Die detaillierte Natur anglo-amerikanischer Kaufverträge. The detailed nature of Anglo-American sales contracts.
This paper elucidates the common law doctrine of stare decisis and the methodology of using prece... more This paper elucidates the common law doctrine of stare decisis and the methodology of using precedents, including the practice of distinguishing and overruling them.
Social Science Research Network, 1997
The systematization of German law stresses the public policies (called principles) furthered by e... more The systematization of German law stresses the public policies (called principles) furthered by environmental law, and analyzes the ways ("instruments") in which these policies are effectuated. This systemization can be applied to U.S. law to design better strategies for improving and maintaining environmental quality.
Social Science Research Network, 1997
In describing a country as democratic, people generally mean one of three things: a political sys... more In describing a country as democratic, people generally mean one of three things: a political system that promotes social equality, one that protects liberty, or one that places ultimate political power in the people as a whole. These conceptions of democracy are referred to in this article respectively as social democracy, liberal democracy, and political democracy.
Lit, 1998
Common Law-Methodik an. Er stellte damals fest, daß das englische Präjudizienwesen wohl gelegentl... more Common Law-Methodik an. Er stellte damals fest, daß das englische Präjudizienwesen wohl gelegentlich in deutscher Sprache besprochen, nicht aber “in so hinreichenden Fällen im Urstoff vorgeführt worden [war], daß ein deutscher Jurist einen Anhalt dafür hätte, sich die Erörterungen der Fachleute zu vergegenwärtigen, erst recht nicht, sich bei geteilten Meinungen eine selbständige Ansicht zu bilden". Diesen Mangel behob er zum Teil durch das im Jahre 1928 veröffentlichte Manuskript “Einführung in das amerikanische Präjudizienwesen", das er fünf Jahre später unter dem Titel “Präjudizienrecht und Rechtsprechung in Amerika" mit einer Vielzahl von übersetzten, hauptsächlich amerikanischen Gerichtsentscheidungen und Kommentarauszügen veröffentlichte. Denn nur durch die Arbeit mit den Entscheidungen selbst kann die Common Law-Technik in ihrer Simplizität und Komplexität gelernt werden. Hierzu noch einmal Llewllyn:“Alles abstrakte Reden gewinnt nur dann eine faßliche Gestalt, wenn es sich auf eine Fülle dem Leser bekannter konkreter Fälle stützt, durch die erst der abstrakte Begriff Leben und Farbe und somit überhaupt Be-deutung gewinnt."
Sweet and Maxwell, Jan 31, 2014
, upon diagnosis with bacterial pneumonia and pulmonary tuberculosis (TB). An outpatient rapid mo... more , upon diagnosis with bacterial pneumonia and pulmonary tuberculosis (TB). An outpatient rapid molecular sputum test (RMT) performed on March 20, 2020 revealed positivity for M. tuberculosis with rifampicin resistance (R). The therapy established at the time was capreomycin (CM), ethambutol (E), levofloxacin (Lvx), pyrazinamide (P), and terizidone (Tzd). After hospitalisation, his general condition progressively decreased. A reverse-transcriptase polymerase chain reaction (RT-PCR) on April 9, 2020 was positive for SARS-CoV-2. The patient developed viral bronchopneumonia, bacterial pneumonia, septic shock with pulmonary focus, and respiratory and renal failure. He required orotracheal intubation, tracheostomy, and mechanical ventilation in the prone position. Anti-tuberculosis and antimicrobial therapy was maintained. The patient remains hospitalised for tuberculosis treatment. TB is the largest cause of death due to a single infectious agent, accounting for 1.5 million deaths in 2018 and approximately 4,000 deaths per day. Similar to SARS-CoV-2, TB undergoes direct airborne transmission and is considered a social disease. Its incidence increases or decreases according to socioeconomic and/or social protection measures. Risk factors such as older age, malnutrition, diabetes, agglomeration, social vulnerability, and signs and symptoms such as cough, fever, asthenia, and myalgia are common to both pathologies and may confound and/or delay the diagnosis of COVID/TB co-infections, thus increasing virus and/or bacillus dissemination. The patient had risk factors for both infections, besides structural pulmonary parenchyma involvement (X-ray), which may explain the viral infection severity, progression to Severe Acute Respiratory Syndrome, and need for mechanical ventilation Brazil is the ninth largest economy in the world. Meanwhile, 20% of the population remains in poverty. It is estimated that 12 million people live agglomerated in communities (shanty towns) without basic sanitation. This combination of factors may facilitate COVID-19/TB co-infection and increase the number of TB cases and deaths. In summary, health services, including those that diagnose and treat TB and lung diseases, may receive patients with COVID-19, many of whom have not been previously diagnosed. The consequences of co-infection are remaining unexplored. Patients will need close follow-up to assess possible late respiratory and systemic repercussions. Furthermore, effective public power and health system actions will be necessary for the most vulnerable populations to avoid cases as serious as the one presented here.
Social Science Research Network, 1995
State and local governments in the United States and Mexico could play a significant role in solv... more State and local governments in the United States and Mexico could play a significant role in solving cross-border environmental problems. There are impediments to such action, including U.S. constitutional limitations, the need for authorization under state law, and limitations on funding. This article presents strategies for overcoming these impediments. It also reviews some of the creative initiatives already under way.
Toward an Informal Account of Legal Interpretation offers a viable account of law, judicial decis... more Toward an Informal Account of Legal Interpretation offers a viable account of law, judicial decision-making, and legal interpretation that is as fresh as it is familiar. The author expertly challenges the dominant mode of formalist theorizing and proposes an explanatory account of legal interpretation that can profitably be understood as an 'informal' intervention. Such an informal approach has no truck with the claims of the formalists (i.e. that law is something separate from ideology) or the anti-formalists (i.e. that law is nothing other than ideological posturing). Hutchinson insists that, when understood properly, legal interpretation is an applied exercise in law-and-ideology; it is both constrained and unconstrained in equal measure. In developing this informalist account through a sustained application of the 'no vehicles in the park' rule, this book is wide-ranging in theoretical scope and substance, but also accessible and practical in style.
Rechtstheorie, 1997
Stare decisis (in front of the Federal Constitutional Court) Stare decisis et non quieta movere, ... more Stare decisis (in front of the Federal Constitutional Court) Stare decisis et non quieta movere, das heisst: bei Entscheidungen stehen bleiben, die Bindungskraft von Vorentscheidungen oder Prajudizien akzeptieren. Die mit diesem Dictum verkntipfte Doktrin ist, auch wenn sie nicht so strikt wie friiher angewandt wird, als selbstverstkndlicher und vielleicht sogar unerldBlicher Bestandteil des anglo-amerikanischen Common-Law-Systems zu betrachten. In vielerlei Hinsicht verktrpert sie die Seele des Common-Law. Dieser Beitrag soll der Frage nachgehen, inwieweit die Doktrin auch in Deutschland, speziell fir das Bundesverfassungsgericht, Gilltigkeit beansprucht.
Social Science Research Network, 2001
The year was 1898. As the body of Prince Otto von Bismarck, the founder of the modern German stat... more The year was 1898. As the body of Prince Otto von Bismarck, the founder of the modern German state, lay on his deathbed, two enterprising practitioners of the then newly improved art of photography made their way into his room and took a snapshot of the corpse. The children of Prince Otto later sued to enjoin publication of the photograph, and to require destruction of the photograph, all copies, and the plate. The court issued the injunction as prayed, reasoning that it would be unjust to allow the photographers to profit from their illegal entry (condictio ob injustam causam).
Über die grundlegende Unmöglichkeit, ein juristisches Wörterbuch mit der Zielsprache Englisch zu ... more Über die grundlegende Unmöglichkeit, ein juristisches Wörterbuch mit der Zielsprache Englisch zu erstellen: Plädoyer für eine Rechtsenzyklopädie. On the fundamental impossibility of creating a legal dictionary with the target language of English: plea for a legal encyclopedia.
This article provides an overview of the origin, application, and limits of the Betretungsrecht (... more This article provides an overview of the origin, application, and limits of the Betretungsrecht (the right to “walk upon” property) in the Federal Republic of Germany. Drawing on primary legislation, German journal articles/books, and court decisions, this article explores the practical reality of the recreational entrance right in Germany, critically examines the constitutional issues underlying the recognition of the Betretungsrecht. The Gewohnheitsrecht (legal rights in land created through long and extensive public use) was the historic legal institution creating a public right to use private property in Germany for recreation. This Gewohnheitsrecht was codified in two important federal laws, the Federal Nature Protection Law 1977 (Bundesnaturschutzgesetz) and the Federal Forest Law 1975 (Bundeswaldgesetz). The laws are categorised as framework jurisdiction (Rahmengesetzgebung) under Article 75 of German Basic Law, thus establishing nationwide standards to be implemented by the ...
Journal of law and health, 1995
Social Science Research Network, 1996
Introduction to US Environmental Laws by Edward Shea is a book designed to introduce foreigners t... more Introduction to US Environmental Laws by Edward Shea is a book designed to introduce foreigners to American environmental law, providing a chapter on each of the major federal environmental enactments. Being a lecturer in Europe on American environmental law, Dr. Lundmark offers his unique insight into the effectiveness of Mr. Shea's book as an introductory educational tool. The book review describes the subject matter of the book and comments on its organization. Further, Dr. Lundmark points out several of the book's substantive flaws and omissions. Finally, the author offers several remedies to the book's shortcomings.
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Papers by Thomas Lundmark
How can England and the USA get by with so few judges? One reason has already been suggested: the use of lay judges in England and Wales to handle minor offences. But two other factors are also of considerable importance, both of which concern the prominent role of the common lawyer in resolving disputes.
First, common lawyers play a very active role in settling disputes with no, or very little, intervention by judges. Up to 97 percent of civil cases in common law jurisdictions are resolved with little or no judicial involvement, meaning that the judge need only concentrate his or her efforts on the remaining three percent. Hence the popularity of classes in alternative dispute resolution (ADR) in the common law world. By contrast, settlement rates in Germany range from 15 to 25 percent, leaving judge to resolve all the remaining cases that are not dismissed for some other reason.
The second additional factor that helps explain why there is less need for judges in common law jurisdictions than in most civilian jurisdictions is the important role of the common lawyer at the evidentiary trial, and in finding and applying the law. Whereas civilian judges must ensure that the parties explain all relevant facts and submit all relevant applications, and generally must display a firm knowledge of domestic law in every case before them (the doctrine iura novit curia), this is not the case in the common law world. There it is the task of the lawyer to present the evidence and interrogate witnesses. In addition, the lawyer supports the judge in finding and applying the law, if necessary. The common law judge is not presumed to know the entire law which may apply to the case.
These historical differences still influence legal education in common and civil law jurisdictions. To continue with England and Germany as examples, in England, a legal education at university level in English law has only existed on a large scale since the middle of the last century. Further, it is quite common for English academics to have considerable practical experience. The emphasis was, and for the most part still is, on training lawyers, not civil servants, as in Germany and elsewhere in the civil law world.
What is meant by the Reception of Roman law? It denotes the effects of the rediscovery in 1070 of the Corpus iuris civilis of the Roman Emperor Justinian on the law and legal culture of the legal systems of continental Europe, including on the establishment of universities and on the education of lawyers. The Corpus iuris civilis consisted of a collection of Roman law on the subject of civil (that is, private) law, including the systematic arrangement of documents from the classical period of Roman law dating from approximately 100 BC. In the secular world, these texts in time enjoyed a status comparable to that of the Bible in the religious world. The influence of Roman law on continental European law and practice grew from the 11th century onwards.
As stressed by John Merryman in his book The Civil Law Tradition page 28, by promulgating the Corpus iuris civilis, Justinian intended to abolish all prior law. Further, the Corpus iuris was intended to be exclusive, complete, and enduring. It was divided into three parts: the Codex (a selection of imperial enactments); the Digest (a compilation of juristic law); and the Institutes (a sort of student textbook). For our purposes, the Digest is of most interest. The Digest represented an authoritative text, compiled from the writings of classical jurists interpreting Roman law. The Digest laid the foundations for a later development of a Romanic common law of Europe, the ius commune, which, in turn, influenced the movement toward codification.
In Germany, the judiciary represents an independent career path, open to any German lawyer who has passed the second state examination. However, competition for a judicial position is keen: Germany prefers to select the best students for judicial office. In England, there is the belief that good, well-respected lawyers make the best judges. At least five years of experience is required for most judicial posts in England, but candidates often have considerably more. Many successful candidates have over 20 years of experience. The situation in the USA is similar to that in England. Candidates for judicial appointment in California, for example, must have at least 10 years of legal experience.
How can England and the USA get by with so few judges? One reason has already been suggested: the use of lay judges in England and Wales to handle minor offences. But two other factors are also of considerable importance, both of which concern the prominent role of the common lawyer in resolving disputes.
First, common lawyers play a very active role in settling disputes with no, or very little, intervention by judges. Up to 97 percent of civil cases in common law jurisdictions are resolved with little or no judicial involvement, meaning that the judge need only concentrate his or her efforts on the remaining three percent. Hence the popularity of classes in alternative dispute resolution (ADR) in the common law world. By contrast, settlement rates in Germany range from 15 to 25 percent, leaving judge to resolve all the remaining cases that are not dismissed for some other reason.
The second additional factor that helps explain why there is less need for judges in common law jurisdictions than in most civilian jurisdictions is the important role of the common lawyer at the evidentiary trial, and in finding and applying the law. Whereas civilian judges must ensure that the parties explain all relevant facts and submit all relevant applications, and generally must display a firm knowledge of domestic law in every case before them (the doctrine iura novit curia), this is not the case in the common law world. There it is the task of the lawyer to present the evidence and interrogate witnesses. In addition, the lawyer supports the judge in finding and applying the law, if necessary. The common law judge is not presumed to know the entire law which may apply to the case.
This view is in stark contrast to the teaching of law in common law jurisdictions, where public policies, economic considerations, psychological dimensions, and even religious considerations are openly discussed. The clearest example for this is the United States, where would-be lawyers must study a subject other than law at university before beginning their studies of law. In other common law jurisdictions, like England and Australia, it is quite common to study law alongside some other subject. In my experience, new lawyers in these jurisdictions often leave their university (often called “law school”) training with the feeling that many if not most laws are open to interpretation. In practice, they quickly learn that this is not the case. The vast majority of legal questions have already been dispositively resolved.
In civilian legal education, law students in general are only taught law. Civilian law students, like civilian judges, must restrict their justificatory arguments to narrowly defined legal arguments. They are not allowed to betray the ultimate reasons for deciding a new legal issue one way or the other. They are not allowed to make appeals to political, economic, moral, or social realities, which in fact is the only way anyone can decide new legal issues. For legal science teaches that there is only one right answer, and it is the result of a more or less mechanical, deductive application of the law to the facts. The ultimate decisions are consequently hidden behind a formalistic veil. In practice, they quickly learn that there are often no easy answers to their clients’ legal questions.
By laying claim to a scientific tradition, civilian lawyers also tend to be dismissive of what they perceive to be unscientific, non-autonomous traditions, not only those jurisdictions that consider religious arguments, but also the (non-autonomous) common law tradition, which is sometimes seen by them as being disorganized, sloppy, and open to abuse. What they fail to realize is that autonomous systems are not really autonomous: they are only pretending to be autonomous. People everywhere are, and should be, influenced in their decision making about what is politically reasonable, what makes economic sense, what is moral, and what is best for society. Those who claim that they can make legal decisions in a vacuum are deluding themselves.
Although civil law jurisdictions do not expressly recognize the doctrine of stare decisis, civilian judges in the first instance work in judicial hierarchies in which they are expected to follow the rulings of the judges on the appellate courts. In addition to creating more work for the appellate courts, the failure of lower court judges to follow appellate court rulings would violate notions of equality, lessen predictability, and undermine the public's trust in the judiciary. Further, many civil law countries have statutes on the books that require inferior judges to follow the decisions of judges superior to them in the judicial heirarchy. In addition, there are statutes regulating the binding power of precedents of the various panels on appellate courts in civilian jurisdictions. To promote efficiency, predictability, and collegiality, the legislatures in civilian jurisdictions often enact statutes requiring all panels of such courts either to follow the previous rulings of the other panels, or else call for an en banc decision of all of the panels of the court so that they can reach an agreement on how the law should be interpreted.
In fact, such en banc decisions are extremely rare. In the vast majority of cases, the judges of the other panels are more than happy to accept the considered judgments of their colleagues on the other panels. It is also very rare for the panels to overrule their own decisions. Indeed, one of the studies I conducted found that the judges of the German Federal Constitutional Court were less likely than the United States Supreme Court to overrule their own precedents, although they are more likely than the Supreme Court of the United Kingdom to do so. In short, despite the absence of a formal doctrine of precedents in civilian countries, the actual practices of the courts in civil law jurisdictions regarding precedents are functionally similar to the practices of courts in common law jurisdictions
In the course of this section of the tutorial, it will be seen that reasoning with statutes and reasoning with cases are actually one and the same intellectual activity. This holds true for both the common law and civil law traditions.
In summary, in the years after the Norman Conquest, English judges played a significant role in developing the law. This judicial development of the common law in England can be contrasted with the Reception of Roman law on the European continent that ultimately led to the enactment of the grand continental codes that remain in use today. The Reception of Roman law has had considerable influence on the development of continental European legal systems. The influence was very great, far greater than Roman law's influence in England.
What is meant by the Reception of Roman law? It denotes the effects of the rediscovery in 1070 of the Corpus iuris civilis of the Roman Emperor Justinian on the law and legal culture of the legal systems of continental Europe, including on the establishment of universities and on the education of lawyers. The Corpus iuris civilis consisted of a collection of Roman law on the subject of civil (that is, private) law, including the systematic arrangement of documents from the classical period of Roman law dating from approximately 100 BC. In the secular world, these texts in time enjoyed a status comparable to that of the Bible in the religious world. The influence of Roman law on continental European law and practice grew from the 11th century onwards.
The term “civil law” has various usages in English. Today, the most common use of the term is to refer to all law that is not criminal law. If a lawyer says that she has a civil practice, it means that he or she does not handle criminal cases. But this is not the usage of civil law employed in the context of comparative legal studies. Rather, in this context, civil law means law that is based on the Corpus iuris civilis, that is, Roman law. Indeed, “civil law” traditionally meant, and sometimes still means, “Roman law” in legal English. Nowadays, a civil law jurisdiction is one which, unlike England, has been heavily influenced by Roman law and legal culture.
Based on the book "Charting the Divide between Common and Civil Law' by Thomas Lundmark, available from Oxford University Press
This structure, this approach, this understanding of law comports with continental conceptions. Seeing this structure being imposed on the common law in black and white has the salutary effect, at least for my students in MŘnster, of breaking through preconceived notions about the common law, especially the prejudice shared by many academics that the common law is both unstructured and unstructurable. This book, it is hoped, will aid in the process of understanding and appreciating the striking normative similarities between the civil and the common law.
Professors Kiss and Shelton have combined to translate into English and supplement the former's pioneering work, Droit International de L'environnement, published by Editions A. Pedone in 1989. In doing so, they have produced an important and useful textbook in the developing field of international environmental law.
It collects and, for the most part, digests all of the importan international agreements and literature on the topic. The author have gathered together hundreds of strands of policies, statements declarations, treaties, cases, articles, and other materials and woven them tightly together, succeeding in their objective of cataloging th major developments in international environmental law. That being said, the book suffers from certain shortcomings. Th most serious of these is the failure to take a critical, global view of t subject matter. This weakness is felt in the disappointing first chapte in which the authors sidestep the task of defining the term" inter tional law of the environment." The second flaw, which this boo shares with most other scholarship on the international law of the e vironment, is the failure to consider explicitly the various instrumen of environmental policy …
Introduction to US Environmental Laws by Edward Shea is a book designed to introduce foreigners to American environmental law, providing a chapter on each of the major federal environmental enactments. Being a lecturer in Europe on American environmental law, Dr. Lundmark offers his unique insight into the effectiveness of Mr. Shea's book as an introductory educational tool. The book review describes the subject matter of the book and comments on its organization. Further, Dr. Lundmark points out several of the book's substantive flaws and omissions. Finally, the author offers several remedies to the book's shortcomings.
Erbes, Senior Vice President of a major environmental and engineering consulting firm, 1 has written probably the most useful and comprehensive2 practice-oriented book on the market on the subject of compliance with air quality controls. The introduction is followed by an informative second chapter detailing the history of air quality legislation. Erbes summarizes the main provisions of federal air quality legislation and concludes with what he terms the “fundamental concepts” of the 1990 Clean Air Act Amendments, specifically, market-based incentives, facility bubbles, compliance certification, intergovernmental requirements, and regulatory negotiation. Market-based incentives include emission trading between different companies. Facility “bubbling” refers to the practice of shifting emissions of air toxins from one device to another within the overall facility to encourage the operator to determine the most cost-effective way to reduce or control emissions levels. 3 For the first time in United States air quality regulation, the Clean Air Act Amendments4 require a responsible corporate official5 to certify annually that his plant complies with a permit. 6 In the second chapter, Erbes also introduces regulatory negotiation (reg-neg), an attempt by the Environmental Protection
(Every reader of the DAJV newsletter knows the current German-language books on American law, namely the general introductions by Blumenwitz, Fulda and Hay and the introductions to the specialist areas of American law by Brugger (introduction to public law in the USA) and Schack (Introduction to US Civil Procedure Law). With his "Introduction to American Private Law", Dr. Mathias Reimann, LL.M., Professor of Law at the University of Michigan Law School has created a work that is one of the best of these books Dr. Hans-Peter Ackmann, LL.M., who edited the interesting section on labor law under his own responsibility, Reimann gives the German reader excellent insights into the sometimes confusing diversity of American private law.)
(As the title suggests, the book "Introduction to Anglo-American Legal Language" is primarily intended as an introduction to the language and not to the common law legal system itself. It promises the reader to present around 500 legal technical terms in context This is done using English-language texts, which are then followed by a list of the specialist terminology used. The lists differ from the explanations in monolingual dictionaries in that they only explain the vocabulary of the text and - where it appears helpful and correct - give German translations For example, the following explanations can be found for the English word "affidavit" on page 167: "sworn statement of facts." This very practical information saves the reader the hassle of looking up a technical dictionary and finding out the fur definition fitting this context.)
As stated in its title, this book urges the legal community to embrace what the book’s author, Allan C Hutchinson, describes as an ‘informal’explanation of legal interpretation. Hutchinson employs ‘interpretation’broadly to encompass the activities of finding the law, applying the law, and justifying the result.‘Interpretation’covers statutory and constitutional interpretation as well as judicial pronouncements of common law. Basically, then,‘interpretation’is synonymous with judicial activity and, by extension, the activity of lawyers and others involved with the law. The final chapters of the book sketch Hutchinson’s ‘account’of what is ‘informal’in legal interpretation. It will be seen that ‘informal’signifies more than a mere rejection of what Hutchinson terms ‘formalist’interpretive methods.
But before Hutchinson can begin to present his explanation of legal interpretation, he must first demonstrate that the explanations of others are …