The editor is the pilot, driver or captain of the users and readers of this Anthology of Swiss law and legal culture. In the following preliminary remarks the editor sets some flags on his guiding mission.

a)     The Anthology sails under the leitmotiv "See it fresh - see it whole - see it as it works"  from the American lawyer Karl Llewellyn. This stresses the importance of facts first and with respect to the Anthology, texts first.  "See it fresh" challenges us to see in an open, undisguised and new way; "see it whole" means we should see it impartially and holistically and - this is key to the whole text oriented and text based approach - "see it as it works" calls on us to understand the functional requirements and operation of the legally relevant social reality in the legal process of globalization. Using this leitmotiv as a metaphor,the Americanization part of this Anthology is a contribution to the weaving of a complex carpet of cultural encounters and exchanges in law and legal culture both before and in particular after World War II.

b)     The Anthology situates the texts found as objects trouvées in their broader context from a dynamic and evolutionary perspective in primarily dealing with the emerging new world order after World War II. The Anthology attempts to increase the awareness and the accessibility of legal and cultural knowledge. It caters to a variety of potential uses common in modern knowledge generation and knowledge management in academic writing. The Anthology has in mind the idea and vision of a college of international lawyers and their networking potential under the aspects of comparability, compatibility -and above all of interoperability. The Anthology is a starting platform of knowledge as a particular mis-en-scène of the legal dimensions of the historic processes particularly after World War II. It is meant to to establish and open up access to what Aby Warburg describes as a "Denkraum"  (thinking space) for further academic and practical legal work. The Anthology in the part on Americanization does not pretend to present a theory or a theoretical framework of structured sets of information. It is an organised aggregation of information and has the primary function of a tool, facilitating further observations and analysis of the topics; it therefore is situated in the toolboxes of "skills" and not in the "salons" of lofty legal sciences which have obviously missed some - or many? - of the boats in the early - and timely - observation and analysis of the upcoming dramatic and far-reaching changes of the legal process of internationalization and globalization in Switzerland. The theoretical discussion of law and legal practice is a "reality science" as defined by May Weber. The specific features of thought and action in legal processes, such as Americanization, Europeanization and Globalization are often dependent, at the meta-level, on a specific mindset open to globalization; we coin the term a globalization - adequate mindset, which applies a motivational position that favours the exploration of the legal process in globalization and a motivational drive inspired by curiosity.

c)    The editor came to the conclusion that in view of the novelty and complexity of the processes and the texts found and in view of the constraints of the specific structure chosen and  currently unknown possible uses in a modern electronic platform of communication that the writing of an introduction as a foundation for readers was both advisable and even necessary. Because of the complexities of the processes of Americanisation Europeanisation and Globalisation and particularly due to the fact that the Anthology includes works written right up to present-day, the situation and the role of comments and introductions have a different and more pressing function than in other traditional parts of the Anthology. The totality of the editors comments in English therefore are conceived as a stand alone text. In that context, this introduction plays a key role in establishing, with the reader, certain basic information on the topics and the method of treatment of the topics. The introductions as a module are conceived as represented in the framework of the Anthology also as stand alone texts in themselves.  The introduction is merely a non-footnoted description and a narrative of the process of Americanization by the editor for the purpose of this Anthology.

d)    The access of the reader and user to the accumulated materials may conceivably be selective in various ways. The reading of the introductions of the three parts for instance, may give the user a prelimanary general overview as to how Switzerland fared in legal matters after World War II and what the processes observed and analysed are. The reading of the "background" and "summary" of the texts may convey a first and standardised insight into the content of the sequence of the texts. These all appear in English irrespective of the original language of the texts. The selective study of bibliographical references might lead to systematic further research and legal analyses. A study limited to the study of the biographies of the authors might provide a revealing insight into the life and the education of the persons, who penned the texts contained within in the Anthology and who were lawyers and professionals sailing in the winds primarily of post World War internationalisation.

These varieties and variants of suggested partial and selective uses in this notion of stand-alone comments of the editor should not detract from the fact that the texts as such and as a whole are at the centre of the Anthology and are to catch the interest - this time - of the readers.

e)        In this autonomous notion of the comments of the editor there are a series of specific reasons for a stand alone role of the introduction to the Anthology:
The choice of a new and different method of selection and description in the Anthology by establishing a process orientated perspective is better understood with an introduction. In view of the fact that the Anthology is a work in progess, the transparency of comments thereby established in introductions are a key element to communicate the method and the content of the endeavor; in addition the fact that a fully developed method under the heading "how does law travel", as the pivotal element of the selection and the description of the phenomena does not exist, in particular merits comment. The fact, that the rigid structure spreads and disperses the knowledge found the backgrounds, summaries, texts,  bibliographical references and biographies calls for a summary of the essential aspects in the form of general comments and introductions. The limitations of the primarily text orientated Anthology requires a re-integration complementing the texts with remarks from professional lawyers and shapers of legal reality as well as institutional environments breeding the respective legal creativity, if one wants to creatively deal with broader concepts of legal culture beyond law. In that context it has to be noted, that in Switzerland the discipline of cultural studies as part of modern disciplines of social sciences and humanities, unlike in anglo-saxon academic environments, is not yet fully developed, this particularly holds true with regards the issue of legal culture in the discipline of law. This enlarged field of observation and analysis can only be grasped by comments in the Anthology and introductory texts. The same holds true as regards to the inclusions of a modern multi- and transdisciplinarity including neighbouring social sciences and humanities which are also relevant to law and legal culture.

As stated above, the comments and introductions are autonomous and are stand alone texts in the form of a non-footnoted narrative. It is legitimate and necessary to attempt to make accessible to the reader and user the preliminary results of the findings of the work of the editor. We have to accept that in various areas full fledged academic knowledge does not yet exist however further research may shed more light on those findings.

f)    The Anthology is marked by the professional education and professional work of the editor as a practitioner in international legal practice and as a professor in academia. Jens Drolshammer is Professor Emeritus of Law at the University of St. Gallen, Switzerland and a founding partner of Homburger Rechtsanwälte, an international commercial law firm in Zurich. He practiced internationally for many years, dealing with issues of European and American law and legal culture as well. He is a Swiss born citizen of partially Norwegian and German origin and spent his educational and professional life in post World War II and post Cold War times. He studied law at the University of Zurich, Geneva as well as at Michigan and Harvard Law School. He spent  an aggregate of approximately three years in the Swiss army, mainly in strategic matters and has been a member of the International Institute for Strategic Studies for more than twenty years. He has taught at the law school of the University of St. Gallen for more than thirty years, primarily on American law and American legal culture and on complex transactions. From 1999 to 2008 he has been a visiting research professor at the Center for European Law Research at Harvard Law School mainly focusing on his projects in the area of globalization and the americanization of law and legal professions. Therefore and faute de mieux he also an author of various texts in the Anthology. The editor presently as an emeritusis an individual entrepreneur without a university chair, secretaries, scientific assistants and research grants. He revels in the lower surgery of generating tools to better grasp the dimensions of the new world order after World War II and after the end of the Cold War by looking at the processes in the areas of Americanization, Europeanization and Globalization of Swiss law and legal culture. He shifted attention and work into this craftsmanship of lawyering after having realised that the conceptual, terminological and scientific suboptimalities and the limits of dealing with the "travels" of law and "impacts" of foreign legal cultures on the sea of Globalization are - as Americans say - "an elephant too big to chew". In this search for tools the editor had to constantly strive to juggle between search and vision, because he realised and is convinced, that knowledge of law and legal culture in its historic and international dimensions is a part of the general education of a present-day national or international lawyer as it always has or should have been. The editor does not regret to have worked on this tool as a "lonely longdistance runner" and has read more than four thousand pages of preselected texts in order to attempt to find a working structure and a tool kit to better understand the processes of Americanization, Europeanization and Globalization of Swiss law and legal culture. Without this search of the phenomena and the corresponding conceptual bricolage and collage one is lost with his one-man-kajack on the sea and in the fog of globalization.

g)    The part Americanization of Swiss Law and Swiss Culture of the Anthology uses two leitmotive: "America does not exist" is the title of a children story of the Swiss writer Peter Bichsel. "... and to define America and her athletic democracy" is from the American writer Walt Whitmans work Leaves of Grass. Besides the parts of Europeanization and Globalization the part on Americanization uses the idea of "travels" and "impacts" of law and legal culture as a guiding principle to describe the complex and underresearched legal processes. The metaphorically and imaginatively guiding principle is an analogy to the work of the literary critic in the essay "Travelling Theory" and "travelling Theory Reconsidered" of Edward Said. The part on Americanization is to be seen under the general Leitmotiv "See it fresh - see it whole - see it as it works" by the American Lawyer Karl Llewellyn.

1.1 Purposes of the part on Americanization and the relationship to the parts of Europeanization and Globalization of Swiss law and legal culture

This part of the Anthology intends to in¬form as to how Switzerland, Swiss law and legal culture fared in the post-World War II era's dramatic internationalization of the historic, political and societal processes of an increasingly globalized world. The impact of  of World War II - and later of the end of Cold War - has been  far-reaching beyond what is generally recognised.  Swiss law - next to the influence of European law - has been strongly exposed to the influence of American law by means of legal education and by means of increasing business relations in the post World War II era to present days.. Yet, while the influence has been one sided in recent times, Switzerland being one of the early European democracy and Federacy was of interest to the emerging United States. The purpose of this part of the collection is to recall the changing interaction between these two very different legal cultures over time. The selection delves back through the history of the legal cultures of Switzerland and the United States and attempts to grasp the most salient cultural and political transfers and encounters in the legal relationship between the two countries.

The first texts show the influence of Swiss law and legal culture on American law and vice versa at the time of the formation of the United States as well as the influence of American law and legal culture on the formation of the Swiss constitution in 1848. The broader perspective of the Anthology on legal culture and a special notion of Swissness shows an amazing involvement of Swiss emigrants such as Johann August Sutter, Henri Wirz and Louis Agssiz in matters of law and legal culture before and after the Civil War.This part of the Anthology only contains one such text, in which the American political scientist Karl Deutsch has described the Swiss model of fed¬eralism as a paradigmatic example of political integration. This analyses led among others to Karl Deutsch's cybernetic theory of government described in the book The Nerves of Government. Other examples of American scholars such as Max Rhein¬stein's analysis of the substantive law on divorce on the Swiss border in the Canton of Ticino and Italy and the field studies of the Nobel Prize-winning political scientist in economy, Elinor Ostrom, in her book on the commons as long enduring, self-organised, and self governed organisations of communal tenure in high mountain meadows in the Canton of Valais are outside the scope of the collection. The Anthology eventually and mainly focuses on the effects of American law on Swiss law after the turn of the twentieth century.

The Anthology is basically limited to the written analysis of direct and indirect influences and impacts of American law and legal culture on Swiss law and legal culture. In the absence of texts by  non-Swiss authors on this subject, the Anthology is inherently  limited to texts by Swiss authors who are mainly interested in the development of Swiss law and have written about being on the receiving end of these influences and impacts. The selection of texts attempts to be indicative and informative for relevant areas of Swiss law and legal culture including influences of American law on the judicial, legislative and administrative process of law as well as on Swiss legal professions and on Swiss academia.

The absence of texts by non-Swiss authors even in the time after World War II should not obscure the fact I that there are important third party insights into the nature and quality of Swiss law and legal system from an international perspective. In legal practice, the relevance of Swiss law reached far beyond the political and theoretical writings contained in written texts of legal scholarship. The Swiss legal system is an established and major factor of the general competitivity of Switzerland as a nation. This has in particular been shown by the rating methodologies and ranking reports such as the Competitiveness Report (WEF), the World Competitiveness Yearbook of the IMD, the Property Rights Alliance International Property of Rights Index (IPRI), the Index of Economic Freedom of the Heritage Foundation, the A.T. Kearney indices and the Mercer Human Resources Consulting Index. Aspects of Swiss law and legal culture are predominant in those rankings of Switzerland as a nation. The most important indices are 50% based on annual questionnaires addressed to entrepreneurs. The results of the annual ranking constitute a significant and persistent post-World War II legal reputation of Swiss law and legal culture from an international perspective; this is another dimension of Swiss legal culture not reflected in an Anthology limited to the publication of legal texts.

Overall, the  phenomeon of the Americanization of Swiss law and legal culture is still vastly underresearched. The texts are scarce in number and late in date of publication. This leads to a spotty patchwork of texts which usually deal with specific issues and do not lead to a consistent and overall view of the post-World War II phenomena of trends of Americanization. There are obvious missing links dealing with the process of Americanization in Switzerland. We shall deal in this introduction, with considerations on a methodology of the observation and analysis of the legal transfer and encounters between Switzerland and the United States, with a special emphasis on the period after World War II.

1.2 Swiss Law and Legal Culture faced with the trend to Americanization after World War II – Elements and causes of the accelerated change – from Pax Americana to Lex Americana and beyond?

Beyond the historic relationship between Switzerland and the United States, the historical discontinuities of the shift of power and the accelerated changes after World War II had an immediate and steadily growing, direct and indirect influence on Swiss law and legal culture. We focus in this introduction primarily on the legal relationship between the two countries after World War II. We first illustrate the causes, the elements and the milestones of the trend to supremacy of the United States.  -Of course, not all effects of an increasingly internationalised world – particularly in the information society – are determined exclusively by the trend towards the hegemonic influence of the United States. Leading commentators also believe that many of the effects will remain in any event, whether or not this dominant influence is later reversed. We shall limit our remarks to a number of representative areas and look at them from a Swiss point of view.
Without necessarily arguing for a causal link between aspects of "increasing hegemony" and "Americanization", these developments - nowadays contested - are all subject to a "tendency for Americanization", the complexity and extent of which were noticeably accelerated by the spread of the information society. Some key factors for this development, in the area of the economy for instance, had their origins well before World War II.

In order to facilitate for the reader and user to approach the texts in this part of the Anthology from the intended holistic view we use first key elements and causes of the accelerated hegemonization of the role of the United States, the focus on how does American law and legal culture "travel" and how does it "impact" on Swiss law and legal culture can only be adequately grasped if these elements are mentioned at the outset.

From a strategic point of view the American dominance was manifested in three ways.
Firstly the values propagated by the United States, such as liberalism and democracy, have spread almost all over the world since the end of the Cold War. They are prevalent in a significant part of the current system of international nation- states.

Secondly, only the United States is currently still able to project its power on a worldwide scale - this of course is contested by the shift of power to the East - this military superiority is likely to increase further in the sphere of high technology.

Thirdly, the United States also enjoyed superiority - most recently questioned in the area of "soft power" and still has a - albeit more and more challenged – controlling influence over substantial parts of the international political agenda (Andreas Wenger). It is precisely this combination of law and power in foreign relations that has raised fears of increasing arrogance on the part of its leadership. The American position as to the role of law in the post-World War II  internationalization of the world can be described as ambivalent, after the United States has in recent times repeatedly paid little heed to international treaties and has noticeably failed to practice the virtue of combining power with cooperation. We cite in this connection the United States' failure to participate in the International Criminal Court and the Land Mine Treaty, its failure to pay its debts to the United Nations, the manner in which the NATO intervention in Iraq, in Afghanistan, in Kosovo and most recently in Lybia were initiated and carried out and how American courts are being instrumentalized to set a national agenda for international conflicts, not to mention the manner in which the issue of the Holocaust has been treated.

From an economic point of view - "the causes of Americanization of the economy". The influence of the United States began to make itself be felt at the turn of the last century, when American methods of production began to spread. During the 1920s, Europe started to adopt US methods and attitudes under the general heading of "rationalization". Without actually adopting US management methods, European companies employed both concentration and cooperation in order to obtain greater economic and political influence.

These strategic factors of power and influence of the United States have a content and direct impact on the substance and the style of the use of law in US foreign policy.

After World War II, the United States for the first time pursued a specific policy of reshaping European states after its own image, or at least to influence them as far as possible in this direction, of which Switzerland was not a direct address.. The preconditions for obtaining aid under the Marshall Plan led to political and regulatory change. The United States was responsible for the creation of the General Agreement on Tariffs and Trade (GATT now the World Trade Organization, WTO), the OEEC (now OECD), the Bretton Wood System and other institutions conceived in accordance with the economic and legal values of the United States. In terms of the Americanization of the economy, the most crucial change was the change to mass production and thereafter mass distribution, as well as extensive direct investments from the United States in the 1960s and 1970s. Whereas in the 1970s and up to the mid 1980s there was, relatively speaking, less influence coming from United States, a lasting wave of Americanization has since the start of the 1990s brought about a change in Europe from the Old Economy to the New Economy.
The United States informally supported and influenced the shaping of the European Economic Community (EEC). In particular, strong disciplines on competition law and policy reflect the tradition of the Sherman Act and its importance in fostering and protecting democrary, beyond today's predominant consideration of economic efficiency.

From an educationl  perspective Americanization can be seen first of all in the changes that have taken place since the 1980s through an even greater adaptation to the US system of higher education and its competitiveness. US legal education had a profound influence in educating Swiss lawyers, both academic and practitioners. There is hardly a professor on a law faculty or a partner in one of the leading law firms who had not obtained a legal degree from one of the leading US universities. The outreach of these universities was mainly triggered by extensive educational programmes aiming at re-education of European, in particular German lawyers (Fulbright programme) from which also Swiss lawyers were able to benefit. The attractiveness is, based upon a number of factors (see also the text by Arthur van Mehren and Peter Murray).

Firstly, this competitiveness is based on the enormous openness of US academic institutions towards society at large and a corresponding revoling door policy shaped by the rotating sytem of US administration which is completely absent in Europe. American science and academia actively seek an exchange with the industrial and commercial sector by offering their goods, products and innovations on an increasingly global marketplace.

Secondly, the course credit system was suitable for accepting foreign students. Long before the credit system was introduced in Europe (Bologna System), students in the US received a certain number of points for completing certain parts of their course, but are at liberty to choose where and when they carry out the work demanded of them. The opportunity to choose from a menu of options is an important precondition for US institutions of higher education being able to reach out to their students anywhere in the world.

Thirdly, education and training is based upon problems and not codification. The complexities of the legal process are understood and discussed on the basis of case law and the Socratic method. Other than European legal education focusing on positive law, legal education in the leading schools in the US is forward looking and policy oriented.

,Thirdly in terms of teaching, the efforts are focused on bringing about the success of students, on maximizing their achievement as well as on "learning by doing". A shorter period of training focused on vocational relevance also responds to the increasing need for further education and the paradigm of lifelong learning. In the discipline of international relations, the output and methods being introduced through this Americanization also presents a challenge through increasing fragmentation and specialisation of academic discourse.

The influence of US law in Switerland is partly due to these factors. They influence the methods of teaching and thinking of professors, for example turning to case law which was crucial in developing human rights protection under unwritten constitutional rules in the 1970s and 1980s. Practitoners, after having obtained a US legal education, were open to introduce elements of US law in contractual relations. Those turning to government work were included to refer to US law in the process of legislation and law making.

Trends in US academicia will remain of importance and will continue to shape Swiss legal culture in coming years for a number of reasons. The editor particularly points to the following observations which are important factors in assessing the role of US academics in legal sciences.

In the spheres of international relations, international history, international law, international economics, international organisations etc., there is a spread of methodological pluralism and new approaches - from structuralism to constructivism to post postmodernism. At the same time new areas of research, from gender, to cultural and identity studies, are a source of interest for some and dismay for others. There is a great emphasis on interdisciplinary working; the associated academic subjects are often included in the curriculum even at the level of undergraduate studies and it is no longer rare to find academics holding two PhDs in associated disciplines. In practice, however, most academic careers are characterised not so much by being interdisciplinary as by specialization and academic groupings are becoming increasingly separated and more specialized in their subject.

Overall, it is difficult for the European observer to avoid the impression that not only a transatlantic political dialogue is becoming more difficult but also that academic discourse in the field of international relations is marked ever less by a "mental interoperability" in the sense of a true international, cultural and political dialogue.

Five factors are especially significant here, which are relevant in assessing the international influences of US legal sciences for the purpose of understanding the majority of texts in this part of the Anthology.

Firstly, academic discourse in the US within the subjects mentioned is turning ever more into a discourse among specialized subcultures. The consequences of this trend can be seen, for example, where traditional associations are split up into competing organisations.Secondly, research remains disciplinary, but legal research is increasingly rooted in empirical research and facts. Thirdly, , the academic debate in the US seems to be focusing increasingly on a national perspective and leaving out an account of the international dimension. This specific American domestic view in turn increasingly comes to dominate the whole of transatlantic communication. Fourthly, this isolationist trend is made all the greater by the dominance of English as the language of discourse, because it increases the predominance of Anglo-Saxon terminology and ways of thinking.Fifthly, although interdisciplinarity is in fashion, the necessary attention at times is not being directed to the development of the theories and methodologies on a metalevel it would require.

1.3 Relevance of the accelerated trend to Americanization after World War II for Swiss law and legal culture

The impact of Americanization on legal systems, legal professions and legal training remain vastly underresearched. More attention has been given to a growing American influence on Swiss legal culture in recent years. In economic terms the influence of US law thas been most likely to be strongly seen in OECD nations; in terms of legal activity they are likely to occur in more proactive, creative activities, and in terms of legal professions mostly within the international practice of law and the legal departments of Swiss multinational enterprises. Lawmaking will probably be more strongly affected than the application of law and law enforcement, and in the training of an international lawyer sooner than in the traditional legal education.

In part, this process of "travels" and "impacts" is being consciously steered, engineered and coordinated by political will and design; in part it is simply occurring of its own accord. Apart from the growth of the information society, it is surely also the media of legal knowledge with the help of modern communication technology that has played an important role in the spread, not only of the knowledge base, but also of a more emotive approach to knowledge about legal processes; this in turn has furthered the process of Americanization. The lack of awareness in the private and the public sector - in part also in the United States - of the significance that law has for the continuity of social and particularly economic processes is another factor favouring the trend for American law to have its effects invisibly. The fact that there is an American tendency to limit oneself to one's own view of the world, which goes hand in hand with a growing US hegemony, has in recent times made it more difficult for Americans to communicate about their own legal culture and Europeans to understand these developments.

An overall theoretical framework, a common terminology and a systematic approach after Word War II have all suffered and partially deteriorated as a result of a pluralization of different areas of law and a tendency to embrace other social sciences. A repositioning and loss of significance of comparative law and international law, particularly in the United States, even though comparatists are continuing to investigate the relationship between civil and Anglo-American law, do not make this communication any easier, and - an important factor – a generation of jurists trained on both sides of the Atlantic, who after World War II had a common international perspective, are no longer alive or have gone into retirement.

The Americanization of international sets of facts following extensive interpretation of jurisdictional and conflict of law rules continues to challenge the sovereignty of different national legal systems and leads to conflicts of jurisdictions with the US legal system (see case study on the UBS-case In many areas of commercial law, particularly financial services, the highly technical nature and lack of specific national qualities of the subject matter favours the rules being made at financial centers in London and in New York.

1.4 Milestones of "travels" and "Impacts" of American Law and legal Culture

These developments from a bird's-eye view show the following milestones.
The amazing knowledge of the American founding fathers of Swiss writers on international public law , of the confederation and Swiss law and legal culture in general first lead to an intensive exchange of Swiss legal culture with American law and American legal culture (text of James Hutson , Paul Widmer , text "Federalist Papers", text "the Antifederalist").

After the constitution of the United States as a nation, years of influence and inspiration of the Swiss developments towards a modern state followed. According to William Rappard the transformation of the Swiss Confederation to a full-fledged nation-state "was carried out in conscious and deliberate imitation of the American model".

At the turn of the 20th century, American Swiss diplomats according to Heinz K. Meyer, a Swiss historian working in the United States, looked back on five decades of substantial achievements in their efforts to structure the relations of the two countries. The greatest of these achievements was the Treaty of 1850, a prominent landmark in the history of American-Swiss relations of the 19th century. Friendship was the leitmotif and the basic content of American-Swiss relations from the very start. The United States kept a close eye on the fate of Switzerland, the small second republic in the world, in order to guard against undue turbulences in the revolutionary times in Europe up to 1850.

As part of Switzerland's active contribution to international arbitration in the 19th century involving the United States as well, the Alabama Case lead to an arbitral function of the then President of the Swiss Confederation with intensive negotiations in the Geneva Town Hall (see R. Probst, "Good Offices" in the light of Swiss International Practice and Experience, in the part on Globalization and text in the part on Americanization).

A milestone in the legal relationship of the two countries at the end of the 19th century was Swiss constitutional law's influence on various constitutions of western states in the United States, which all were rooted in and inspired by the institutions of Swiss constitutional law of referendum, initiative and recall (see William E. Rappard and James Hutson).

As part of the psychological and emotional aspects of the legal relationship between Switzerland and the United States, it has to be mentioned that the Swiss government - and many Swiss individuals on US soil - actively furthered and participated in the American Civil War (see text by James Hutson  and Heinz K. Meier). The misleading expression of the "Sister Republics" was a Swiss invention of an overstated admiration of the United States during the Civil War. The first "travels" and "impacts" of Swiss law and legal culture took place in the American Revolution and in the time of the making of the American Constitution of 1786. It has been part of a friendly cultural exchange in both directions and has considerably contributed to American law and legal culture in early times. The 19th century is marked by a friendly give and take between the first two republics in the world, both legal cultures profiting from each other at important times of their legal and political history. The number of Swiss actively participating in the Civil War and the fate of Swiss emigrants in matters of American legal culture such as Johann August Sutter, Henri Wirz, Louis Agassiz and Emilie Kempin-Spyri before and after the Civil War is remarkable and amazing.
In the 20th century, Switzerland was heavily involved in international arbitration involving the United States and fared well through World War I benefitting from its neutrality with the support of the United States in the background.

The beginning of the 20th century was marked by mutual friendliness in the legal relationship between two countries. If one looks at milestones, Switzerland actively became a "protecting power" of the United States. The United States actively but tacitly helped Switzerland to get through World War I based on the principle of recognised and guaranteed neutrality. In the peace conferences in Paris following World War I, President Woodrow Wilson was convinced by the emissary of Switzerland William E. Rappard to choose Geneva as the headquarters of the League of Nations. This was a paramount milestone of the positioning of Switzerland and Geneva in particular on the map and the landscape of a world after World War II from an international and later from a global perspective.

The fact that Switzerland did not participate in the military operations  of World War II is partly due to it's "guaranteed neutrality" established by the Convention of Vienna of 1815 and also because the country was not militariliy attacked by Hitler. The consequence of its inaction was that Switzerland was immediately isolated after World War II vis-à-vis the United States. The legal relationship gradually suffered and selectively deteriorated over the next fifty years, despite the fact that Switzerland participated with its "good offices" in conflicts of United States foreign policy and also acted as a protecting power of the United States.

The period after World War II was consecutively marked by a series of cases of extraterritorial application of US law. Dark spots are the Holocaust cases and - in the aftermath of the UBS case – the still ongoing cases and negotiations in connection with international legal assistance in tax matters based upon the alleged systematic use and misuse of the Swiss banking secrecy in favour of American taxpayers. A late - and one sided - issue was the late realization of Switzerland of the considerable involvement of Swiss in American slavery after the turn of the millennium.
The process of "travels" and "impacts" of American law in the post-World War II era became more and more a one-way street that several times reached the point of imminent conflicts of jurisdictions.

It is a fact - succinctly described in the texts by Detlev Vagts and Dietrich Schindler  - that Switzerland after World War II in the legal relationship with the United States became and stayed isolated, an important milestone being the negotiation of the so-called "Washington Agreement" in connection with blocked assets of Nazi-Germany (see text by Daniel Frei).

In the times after World War II - a major focus of this Anthology - the legal relationship between Switzerland and the United States gradually deteriorated from a friendly and emotional closeness to a reality-based and contested coexistence in view of the rising dominance of the United States which lead to a raising pervasive influence on Swiss law and legal culture.

As milestones, after World War II one finds a series of prominent diplomatic roles of Switzerland on behalf of the United States at various times and during various crises, which persist until now. This role of Switzerland as a "protecting power" was constantly rising based upon the diplomatic philosophy of "Good Offices". Switzerland was asked to take over an important role on behalf of the United States after the Suez Crisis of 1956 and the Cuban Missile Crisis of October 1962; after the end of the Korean War Switzerland became a part of the Neutral Nation Supervisory Commission and the Neutral Nations Reparation Commission and finally had a prominent function in the Iranian Hostage Crisis.

The process of "travels" and "impacts" of American law andlegal culture after World War II as described through the eyes of American lawyers in the excerpts of the book by Arthur van Mehren and Peter Murray  led to a series of conflict of jurisdictions as a consequence of the United States applying its laws extraterritorially. Starting with the Swiss watchmakers case the developments escalated to formal conflicts of jurisdictions in the Mark Rich case in 1980/81, the UBS case (see case study texts) and most recently in the Tinner case concerning the involvement of Swiss citizens in the trade of nuclear plans and secrets on behalf of Pakistan. The United States used systematic and resourceful and direct application and enforcement actions in the alleged assistance to tax evasion based upon the long standing business model of Swiss banks based upon provisions of Swiss banking laws; a common scenario of indirect influence of the United States is the use of international organisations such as OECD in issues of money laundering, corruption and money of potentates, which constantly propelled Switzerland into limelight in its legal relationships with the United States. A particularly dark and emotional chapter of the legal relationship between the United States and Switzerland was written after the beginning of the 90s of the 20th century, which is represented in the Anthology by an extended "case" - study, "Neutrality, Morality and the Holocaust".

Switzerland and the United States presently, in the aftermath of the UBS case,  are in a constant and resourceful manner involved in a complex muddling through, in particular in tax evasion matters based upon a specific business model of Swiss banks making use of the Swiss law provisions on banking secrecy.  These conflicts are  still presently going on.

1.5 Types and Examples of "travels" and "impacts" of American law on Swiss Law and legal Culture

We again primarily focus in this introduction on the developments after World War II. This should not detract from the fact that more than than the half of the texts in the part of Americanization deal with cultural exchanges and encounters between Switzerland and the United States that took place in the 18th, 19th and early 20th century.

In this introduction on the "travels" and "impacts" of American law and legal culture the reader from a methodological perspective is faced among others with aspects of partial reception, harmonizations and legal adaptations. He maybalso be faced with the influence and integration of American law in so called mixed legal systems as well as in supranational legal systems like in the EU. American law is and was in various geographic areas the law of the occupier while other areas were and continue to be faced with so called legal transplants. In yet other areas we note legal exports of American laws in the ongoing competition of exports of law as part of foreign policy or - a salient example – and as part of the proscribing conditions of the financing operations of the World Bank and of the IMF in third world countries based upon US models. After the fall of the Berlin Wall, law and legal concepts travelled in the form of exports of constitutions and laws into transformation countries of Eastern Europe. In recent times, American law and legal culture has established itself as a so-called benchmark in designing new national legal systems. This leads - at times problematically - to transports and travels of American law. American law and legal culture in post World War II is also influenced by a so-called "Soft Power" - or more recently "Smart Power" (Joseph Nye Jr.). That leads to taking over American law and concepts in the respective jurisdictions.

"Routes of travel" and "areas and ways of impacts" of American law and legal culture after World War II from the perspective of American international scholars are aptly described in Arthur van Mehren and Peter Murrays text, which we paraphrase for the purpose of this general introduction as follows.

a) Little attention paid to American law before 1945

Arthur van Mehren and Peter Murray state that unlike Roman law, which exerted influence over the worlds legal system for nearly a millennium or even English, French or German law, which spread to much of the then-civilized world during the 19th and earlier 20th century, American law and legal institutions were not given much attention by other countries until the middle of the 20th century. This was largely because in contrast to the major European powers, America pursued anti-colonial policies; America's early economic activity was focused on developing its own vast territory;  American law was not in a form that encouraged exports and emulation and the international language of discussion and exchange was French and in scientific matters German, and America's language was widely spoken only within the empire of its motherland and cultural competitor Great Britain. American law has traditionally not been susceptible to easily export and emulation abroad in particular because of its uncodified common law form as well as the peculiar and extreme form of American federalism. These factors changed following the conclusion of World War I. The political and economic strength of the United States following the war and during the latter part of the 20th century have led to exports - "travels" and "impacts" - of American public and private law in several forms.

b) Areas of influence of American law after 1945

According to Arthur van Mehren and Peter Murray, the modern roots of European constitutionalism were clearly found in the American theory of government. US law played a major and decisive role in shaping the German Grundgesetz and later the EEC treaty. A key avenue of influence was human rights in international public law and fundamental rights in constitutional law. Many areas of influence in the post-World War II era were indirect.In important areas of present=day- key lawmaking and law practice - the American influence is profound and ongoing. In the area of American private law in the modern world, it is not any concerted governmental activity on either side of the Atlantic or Pacific that accounts for the current worldwide influence of American law and legal institutions. This is, according to Van Mehren and Murray, the result of private negotiations, in which American law is chosen to govern major transactions; the role of international financial institutions, founded in part by the United States that condition financing participation on American style legal arrangements and a more diffuse but not less effective transmission via educational and cultural means. Private law began to become relevant in London, Frankfurt and Paris in particular because of the increasing internationalisation of major American enterprises. The export of the American private law to protect American economic legal actors has been intertwined by a form of law export that is connected with the kinds of economic and financial transactions themselves. The vehicles for the dissemination of the American legal doctrine and the activity of certain international financing organisation are particularly the International Monetary Found (IMF) and the World Bank.

A similar form of law export has been connected with the activities of the World Trade Organization (WTO).

c) Other areas of influences: civilization, constitutionalism and democracy, public law, language and international law

Another area in which American law has made itself felt abroad - sometimes, according to Arthur van Mehren and Peter Murray, to an inordinate extent – is the field of civilization. The expansiveness of American concepts of international jurisdiction has brought peculiar features of American tort law to the doorsteps of the rest of the world. A welcoming expansiveness of American civil jurisdiction is prevented by American choice of law requiring that sometimes, American legal norms are to be applied to circumstances that seem much more closely related to the legal and social priorities of another jurisdiction.

The aspects of American democracy and its public legal order according to Arthur van Mehren and Peter Murray have been admired since the writings by Tocqueville. Some of them, such as the written constitution and the notion of traditional elaboration of that constitution, have served as models for several developments worldwide. Again American constitutionalism and much of American public law does not lend itself to easy adoption. Themes of public law have found wide spread resistance abroad with the exceptions such as the concept of judicial review and, at times, the institution of jury trial. In those areas where American public law has developed to manage and govern the modern economy, there has been a degree of influence based upon the actual merits of the solutions reached. The influence of American law and legal institutions throughout the world had been furthered by the general acceptance of English as the world language and in recent years the world language of law. The universal knowledge and the use of English language - particularly in connection with the World Wide Web - makes American law and legal culture immediately accessible to practically anyone in the world who has a good secondary education. The lack of theoretical structures of American law makes it, according to the authors, more accessible to people not imbued with the English language from birth.

The influence of American law is closely related to each spread of American popular and general culture throughout the world. In the foreground with respect to law is the American media culture. This phenomenon of popular culture is complemented by the intense interest of foreign lawyers in exposure to American legal education.

The outward orientation, according to Arthur van Mehren and Peter Murray, with respect to its own institutions and rules of private law is not matched by a corresponding receptiveness to international law and supranational regiments governing all nations of the globe, including the United States. The United States has historically been somewhat reluctant to embrace international treaties and alliances. World War II brought the United States out of its traditional isolation although engagement with international law and legal institutions began to diminish after the disastrous experience in Vietnam. It cannot be denied that America's recent actions have tended to undermine the influence of American institutions of public law in the world at large. "The preconditions pose an interesting dichotomy over the second half of the 20th century, American influence on private law and legal culture, and to a lesser extent international public law has been profound and is ongoing at the same time. American engagement in international law and legal institutions is now seen as rather negative and in disrepute."

1.6 Lex Americana? -  considerations on the diversity and specificity of the "travels" and "impacts" of American law on Swiss law and legal culture after World War II

This Anthology and this introduction to the Americanization sectionare not the place for an academic seminar on the methodological implications of the process oriented observations of the phenomena of "how law travels?" and how law "impacts". This will have to be the task of further academic research, which as we know, usually produces definitive results much later, if at all. The productivity of the perspective "how does law travel?" as used in the Anthology is obvious and evident even in its preliminary form. This method of observation and analysis of the process of Americanization can not be grasped by traditional concepts and criteria of disciplines of law such as comparative law, foreign law, conflict of law, transnational law and international public law. 'Making transparent the work process of the Anthology therefore has to work with preliminary results of observations and analysis. We think it is reasonable and efficient, to encourage the user and the reader to make use of some of these early and preliminary findings, since the use of the concept "how law travels?" is key and instrumental in the in the Anthology. This would facilitate a productive shift and change of perspective to grasp the process of Americanization in a process - adequate form and in a more subtle and differentiated manner, if ever the reader and user delves into the texts in the Anthology more in depth.

The complexity of the phenomena of "how law travels" require a multidimensional and multifunctional analysis. The outset of such a development of a methodology would need a deconstruction of the overreaching and obfuscating metaphor of Lex Americana prevailing after World War II and after the end of the Cold War first. A recent German study "Das deutsche Wirtschaftsrecht unter dem Einfluss des US-Amerikanischen Rechts" (German economic law under the influence of US-American law) Liebke- Elsing / Grossfeld / Kühne, 2011, has gone in that direction based upon a series of detailed areal studies on the influence of American Law.. This is a good example to help the reader to spot the issues of the influence of American law and legal culture in post-World War II as part of multidimensional and multifunctional approach to the process of Americanization of law and legal culture in this Anthology.

According to the conclusions of this study the development of the influence of American law has moved to direct influence of American law in areas such as in antitrust law, banking law, financial law, international legal practice, European unification of private law, international civil procedure, international administrative law, international company law, etc. The forms of travelling and the causes of travelling, according to this study, in all the instances may vary considerably with respect to the geographic  reach of these influences. The span of influences may lead from partial receptions on one hand to selective regulations of legal institutiones on the other hand. In-depth analyses have shown, that the influence of imports of American law is less intensive in the public part of the legal system than in the system structured and designed based on the freedom of contract. The latter moreover develops and usually grows faster than the former.An important reason for reception according to the concluding summary in the study is a "back log in modernity" (Modernitätsrückstand) such as for instance in the areas of antitrust law, banking law, financial law etc. The vulnerability for reception and the pressure for reception are of course different depending on the areas of law. Factual patterns which are truly international are more prone to receptions. For example, the internationalisation and the globalization of the financial markets brought about a leading function of the United States. Another example reflected in the study is the American influence on the international practice of contracts in the area of mergers and acquisitions. Above all the European Union, according to that study, has become an important factor for reception of American law by the moving of competencies from the member states to the EU.In legal science the phenomena "economisation" has become a major factor of reception. The travelling of the concepts of economic analyses of law in certain specific fields of law are important examples. The growing intensity of law enforcement and the stiffening of sanctions according to the study has become an important factor of reception as well.

Major reasons for this travelling within the legal process of globalization of American legal concepts are economic and social cultural factors. The area of private autonomy and competition with respect to the economic process is a prominent example. The American preference for private law structuring in contracts as well as for private enforcement exert a great influence.

An important factor for this travelling process is the direct multifaceted influences on the legal professions in Europe as well as on the legal languages to be used, an area regularly underestimated by traditional academia that has rarely managed to integrate the so-called world of legal practice in a holistic view.

Reasons for travelling processes and its effects are also the paradigmatic change in legal approaches which are "issue"- and not "system"-focused, the former being more apt to better cope with the process of globalization and its respective legal process. Among the social cultural factors an important fact is that American law and American legal culture in the world is systematically integrated into the world of communication and media.

The editor's intent is to inject some elements of reasonable "deconstruction" into the penumbras of the obfuscating and often overreaching metaphor from pax Americana to lex Americana? He will point to the respective aspects of diversity and specificity in his comments on "background" and "summary" with respect to some of the texts under C.

1.7 Characteristics and peculiarities of dealing with the process of Americanization of Swiss law and legal culture in Switzerland

Switzerland has a curious record in facing and handling the various challenges of American law and legal culture, particularly after World War II.

A critical look therefore must attempt to find answers to the following questions: What is Switzerland's attitude to the tendency of a partial "Americanization of the Swiss legal system"? Are "American matters" and tendencies for "Americanization" proper subjects of inquiry, awareness and action for legal policy as far as the Swiss lawyers are concerned when dealing with the significance of legal culture and its effects on Switzerland? Are the impacts of this on the activities of the international lawyers in Switzerland even far more profound and comprehensive than all other influence in terms of the impacts it has on language, on the organisation of law firms, legal departments, legal administrations as well as on their output, workload and infrastructure? How has the process of Americanization been dealt with in written texts by academia and by professionals in practice?

The affinity of Switzerland to the United States and to American law which had originally existed in terms of mentality has been negatively affected by a number of developments and legal conflicts and disputes in the period from World War II to the end of the Cold War and to the turn of the millennium. This is true despite the fact that in Switzerland the legal system, the legal professions and - admittedly to an ever lesser degree – legal education have been far more internationalised and open to external influences than in most other venues in the network of jurisdictions affected by those impacts.

It would be simplistic and misleading to analyse the post-World War II "travels" and "impacts" of Lex Americana as a general and unitary process and to generalise and not differentiate by sectors of law, by legal actors specifically concerned with such developments and by differences of position on a learning curve. In general the private actors have been quicker and more versatile than the public actors (see above). Switzerland is a negative repeat player which has led the United States to adopt some smart and efficient strategies accordingly. There are areas in which reaction patterns of Switzerland are fairly predictable and highly visible, such as in money laundering, corruption and money of potentates: taken aback and by surprise - confusion and blaming - analyses and fairly quick action - and often ending up as "best in class" (Mark Pieth). There are behavioural inadequacies and suboptimalities in Switzerland in dealing with American law and legal culture which are frequently observed. There was and remains for example in our view often a lack of a communicative, competent and assentive attitude and behaviour in dealing with the impacts of American law and legal culture. A growing openness and an accelerated tendancy to address the challenges that can be observed though in the past ten to twenty years; the tide has turned around fifty years after the end of World War II.

Unlike the Swiss exposure to the European Legal System, which has grown historically and which as a consequence of a political finality has to be characterized as a large-scale direct and indirect harmonisation and/or adoption of law, the exposure and the reactions to the phenomenon of an increasing Americanization of the Swiss legal system has been unsystematic, spotty, emotionally usually opaque and, with all due respect, for many years in same areas backwards in response to particular problems. The areas of human rights and fundamental rights in constitutional law are exceptions. Legal science in general came late into the game. At the end of the eighties Wolfgang Wiegand (the first text after World War II) noted that these issues are heavily underresearched and as a consequence only selective and occasional publications could be found. Swiss lawmakers and judicial administrators - exceptions reserved - are less trained in taking account of the impacts of American law in the course of the legislative and administrative legal process. Switzerland seems to have legal practitioners in private practice and in entreprises, officials and judges who are above average trained and more experienced than those in many other countries to deal with international issues. The Swiss legal system has only slowly recognised the dominance of the English language as a new lingua franca in legal matters. Moreover, in particular, governmental administrations have not sufficiently encouraged and practiced communication on Swiss law with third countries and legal communities. This particularly is true with regard to the Anglo-Saxon world.

Among the reasons for the slow dealing with American law and legal culture in Switzerland are the following:

Unlike in the humanities and particularly in the study of literature, American law is not a recognised field of American studies. No university institutes or libraries specialising in American law exist in Switzerland. The Swiss Institute for Comparative Law has no obvious specialisation in the field of American law, irrespective of the fact that the library was conceived and built by American -trained lawyers and library specialists.

Although Swiss lawyers and law students had a comparative advantage after World War II to be accepted in major American law schools, this number has relatively decreased in the past years. It has to be observed that the major purpose of a Swiss lawyer going to US law schools to obtain masters degrees are often for primarily career and curricula vitae purposes. The number of Swiss lawyers continuing to stay for academic reasons or even become law professors in a US law school has decreased lately and is in absolute numbers very small. Swiss universities therefore largely lack an academic knowledge base on American law and legal culture directely aquired in the United States.

Even if the editorial boards of some legal Swiss law journals include American correspondents and even if they occasionally publish texts in English, it is rare to find any pertinent and continuous discussions of the impacts of American law on the Swiss legal system, its legal professions or legal training and education. Switzerland also lacks a specialised professional organisation particularly addressing the "travels" and "impacts" of the US law and legal culture such as the Deutsch-Amerikanische-Juristenvereinigung (DAJV) in Germany.

Despite the growing importance of the mediatisation of the international legal process, there are hardly any serious attempts in leading general and economic media in Switzerland to deal with American law and its associated transatlantic dialogue systematically and critically; the articles are often restricted to fascinating anecdotal matters, scurrilous pecularities on alleged failings of American law and legal culture and tend to focus on those parts of the American legal system that are also described in the American media, which are on the desk of the sophisticated and cosmopolitan Swiss reader every morning at the same time as the Swiss media in any event. There obviously are sophisticated international media dealing with American law and American culture, which have become a major conduit and carrier of knowledge transfer on American legal matters to Switzerland as well.

Swiss multinational companies have been involved in controversial cases before American courts and administrative authorities and have – to put it mildly – made their own contribution to developments of the history of modern business law of the United States. Companies, usually having English as a corporate language and usually having important legal departments in the United States, are directly part of the American legal process since American law applies to them directly and therefore naturally sail on the winds of American law and the process of Americanization.

The international practice of law, which has come under competitive pressure to live with increasing legalisation, use of information technology, interdisciplinary working, professionalisation, specialisation, market orientation, proceduralisation, institutionalisation and organisation, is usually the most advanced in dealing with the phenomenon of Americanization, the legal professions being one of the most directly affected parts of the Swiss legal system and the professionals working within it.

These characteristics and peculiarities - critical as they may be - show a marked discrepancy between the actual importance of American law and legal culture for Swiss law and legal culture and the actual dealing with this phenomenon. It is fair to say, that we note a lack of coherent and phenomenological description and further systematic in-depth analysis of the direct and indirect influence and impact of American law and legal culture on Swiss law and legal culture.

1.8    Characteristics and peculiarities of the selection of texts and of authors dealing with process of Americanization of Swiss law and legal culture in Switzerland

The editor is a pilot, driver or captain of the reader and user, as said at the outset. He facilitates access and highlights various roads that might be taken to obtain information on the process of Americnaization of Swiss law and legal culture. Since the Anthology uses new methods of knowledge generation and especially since it includes cotemporary developments there naturally occurs a problem.. That is that the knowledge generated by such new methods has not yet been subject to further anaiysis by the academic or professional community. The process of making the Anthology itself however, produces an agenda for possible further analysis on the process of Americanization. It seems to be inefficient and unrealistic to wait until such further analysis and research has been elaborated in the community of scholars before highlighting their importance. The editor therefore takes the liberty to use as an essential element of guidance some preliminary observations that are relevant for the use of the Anthology. This is all the more warranted in view of the lack of a systematic and coherent present analysis of the phenomenon. From this vantage point we summarize a few basic observations and conclusions on the type and style of texts found and on the education and profession of the authors of the texts. The basic information of the contents of the texts found are contained in the paragraphs "background" and "summary" for each text included.

Most of the texts in this part of the Anthology have been written for special occasions and on special topics. It is therefore difficult to provide an overall view in the Anthology of the phenomena in Switzerland of the specific avenues of influence of American law and legal culture, because they do not deal with the process of Americanization as such. Most of the texts are short and have been published in traditional academic publications of law with only a minority of the texts excerpts from major publications such as monographs. The majority of the authors are Swiss with the texts published in the original language of the authors. The texts by and larger have been published by Swiss publishers, which is a revealing element of the "Swissness" of the attempts to selectively grasp the process of Americanization after World War II. Because of an earlier direct exposure of international lawyers and members of the legal administrations in international legal matters, the trends of the influence of American law and legal culture on Swiss law and legal culture, have generally first come to the attention of practitioners and only later to internationalists in academia. The majority of authors work in the German speaking part of Switzerland. Exceptions are the texts written in the institutional environments of Lausanne and Geneva, which are situated in the French speaking part. Under a concept of legal culture it is necessary and advisable, to turn to the biographies of the authors, which are an integral part of the Anthology. There is a high correlation between internationalist educations and/or international professional activities and authorships in the Anthology. The phenomenon of Americanization therefore can only be grasped, if the user follows the gradual internationalisation after World War II of the legal education and the professional activity of the authors represented in the Anthology. Under the broader aspect of legal culture the same holds true for a necessary inclusion of the institutional environments in Switzerland catering for international legal matters. It has to be noted, that a number of the texts of the Swiss and non-Swiss authors have been in a first phase after World War II either written or translated to in English. In the phase starting about forty years after World War II, more texts have been directly written in English.

In the context of a standalone concept of the various categories of comments of the editor, he advises readers and users to first read the "background" and "summaries" of all non-English texts contained in the Anthology. The reader and user can find a guidance on possible sequences of reading the texts of this Anthology in the Introductary remarks under 3 below.

The reader and user beware and be aware of the Leitmotive - two contrarian perspectives - of the part of the Anthology on Americanization. The Swiss writer Peter Bichsels chose as a title to one of his legendary childrens stories "America does not exist". Walt Whitman, the American writer of world literature makes reference to the vitality of the United States. Bichsels text has been written in the sixties of the 20th century, Walt Whitmans poem, The Leaves of Gras has been written and constantly revised after the end of the 19th century. It makes a difference.

The cultural exchanges and encounters between the legal culture of the United States and of Switzerland are distinctively different in times from the American revolution and the formation of the United States up until World War II and in the time thereafter. 33 texts cover the time period before and 21 the time period after World War II.

The trend to Americanization continues to be of great importance to Swiss law and legal culture, in particular with the advent of the new world order after World War II. While up until World War II, examples can be found of Swiss law and legal culture having an outbound influence on American law and legal culture, the "travels" and "impacts" of the international legal process after World War II mainly became a phenomenon of inbound influences. Switzerland, a small and neutral country, was under the graving influences of the driving forces shaping the post-World War II landscape which also resulted in a new legal world order. Switzerland had a historically above average international economy leading to an above average interdependence with the world with the United States becoming the main actor. Despite its neutrality Switzerland was part of the western world during the cold war and thereafter. The rise of the United States, from victorious at the conclusion of the cold war to then a position of almost hegemonic power, resulted in conflicts between Swiss and American law and legal culture. This led to a gradual deterioration of the historically close relationship between the United States and Switzerland after World War II even in legal matters.
Unlike the process of Europeanization, the direct and indirect influences of American law and legal culture on Swiss law and legal culture was not the result of a political decision of entertaining structured legal and political relationships. The American influence was therefore less transparent, less structured, at times patchy and even aggressive, but it was assertive and always an essential dimension of a general westernisation of many aspects of political and legal culture in the post-World War II period.

The reaction of Swiss law and legal culture to the challenges of their American counterparts has not been systematically analysed in Switzerland with there being astonishingly little systematic and theoretical writing on the phenomenon. Under the weight of political, societal, economic and legal reality this has gradually and slowly started to change in the past twenty years. This anthology looks to help to increase the knowledge of the process of Americanization of Swiss hegal culture and to draw a map and framework to better situate the texts assembled
At the outset the editor gives some guidance to the reader and user to possible sequences of approaches to the texts in 2. of the Anthology.

If the reader and user wants to have an insight in the cultural exchanges and encounters between Switzerland and the United States in the early times from an American perspective he may turn to James Hutsons chapters in the short book The Sister Republics, Switzerland and the United States from 1776 to the present. We have divided the book in a chronological sequence in texts 2.1, 2.5, 2.12, 2.16 and 2.28. James Hutson was the historian in charge to write this book, accompanying the exhibition of the Library of Congress. The exhibition under that title was a present to the 700th birthday of Switzerland in 1991.

If the reader or user interested in the historic dimension of the longstanding and special relationship between the United States and Switzerland in legal matters wants to grasp some outbound influences of Swiss law and legal culture in the early period up to the time before World War II from a Swiss perspective, he may first to turn to Paul Widmer's text, which shows the relevance and potential impacts of Swiss law and legal culture on American law at the time of the formation of the American constitution. Alexis de Tocqueville's text shows that the Swiss governmental institutions were regularly taken into account in comparative constitutional analysis. The short passages of the Federalist and Antifederalist papers give an insight into the remarkable knowledge of the Swiss governmental system of the founding fathers. The history of the impact of American legal thinking on the formation of the Swiss constitution in 1848 is described in William Rappard text. Karl Deutsch's text gives an insight in the paradigmatic role of the political integration in Switzerland from a political science perspective.

The early part of the legal relationships is also covered by several texts in the form of case studies on Swiss emigrées. The text 2.8-2.15 refer to court cases, personal memoirs and literary texts on the life of Johann August Sutter. Text 2.14 and 2.15 deal with the death penalty of Henry Wirz, who was tried by a military commission after the Civil War for his deeds as the head of a prisoners camp of the Confederats. The texts 2.21 to 2.23 describe the personal and scientific position of Louis Agassiz, who after his arrival to the United States beyond his theories of paleonthology and geography wrote a theory of races. The texts 2.32 to 2.33 deal with Emilie Kempin-Spyri, the first woman lawyer in Switzerland and Continental Europe. She early on was teaching and writing on American law and founded a college of law for women in New York City.

After the Civil War, the text 2.17 of William Rappard and the text 2.18 of James Hutson deal with the direct influence of Swiss constitutional law concepts on the revisions of constitutions of western States of the United States. The text 2.16 of James Hutson and 2.19 of Heinz K. Meier deal with the ascending role of Geneva in international matters by addressing the arbitration of the Alabama Affair and the historic choice of Geneva as the seat of the League of Nations. The text 2.20 of Raymond R. Probst sheds light on specific examples of activities of "Good offices", which became an important part of Swiss foreign policy in particular in the Swiss-US relationship.

The trends to Americanization in the post World War II decades were of great importance in Swiss law and Swiss legal culture. There is little systematic and theoretical writing on this phenomenon. It probably is "an elephant too big to chew".

The reader or user interested in the role and the tendencies for Americanization of the Swiss legal system, the Swiss legal professions and the Swiss legal education in general may turn to the contributions by Jens Drolshammer. If the reader is interested in sociological evidence of the effect of American legal culture on Swiss legal culture. The reader may continue with the text by Wolfgang Wiegand (2.34), who qualifies the process of Americanization as a "reception" to be compared to the "reception" of the jus commune in the Middle Ages.

If a reader or user is interested in the influences of American constitutional law on the emergence of a coherent concept of fundamental rights in the case law of the Swiss Federal Tribunal he may turn to the text of Peter Saladin (2.41). If one is interested in obtaining sectorial and specific topic-oriented insights, he may turn to the texts of Peter Böckli on business law (2.37); the text of Heinz Aernisegger on the influence of American Law and legal culture on Swiss courts; Peter Nobel on the influences on legal scholarships (2.40) and Jens Drolshammer, on the influences on legal professions (2.35): most are emerite law professors and have been both academics and practitioners on the international arena.

Heinrich Koller's text (2.38) analyses the influence of Americanization on the Swiss legislative process and law in general from the perspective of the Director of the Federal Office of Justice while Regula Kiener and Raphael Lanz describe general limitations in Swiss law and legal culture in receiving elements of the American "Adversarial Legalism" (2.36).

If the reader or user desires an insight into the Holocaust debates under the heading "neutrality" and "morality" he may turn to the selection of texts. dealing with the burning issue of the attempt to redress on behalf of Jewish victims the calamities of World War II, fifty years after the end of the war:  Dietrich Schindler on neutrality and morality; Detlev Vagts on the assessment of Switzerland's behaviour during World War II under the laws governing neutrals; the special envoy Stuart Eizenstat in a strong and pointed forword to the Eizenstat Report I mainly targeting Switzerland; Detlev Vagts, Jens Drolshammer and Peter Murray on a Colloqium and a public panel at the height of the time of Swiss criticism engaging in a constructive dialogue among prominent law professors at Harvard Law school and Thomas Maissen, in a retrospect assessment of the trials and tribulations of attaining a global settlement of cases brought before American courts on the issue of dormant accounts against two Swiss big banks.

If the reader or user wants another and a more in-depth insight as to how an assertive and aggressive use of American law extraterritorially led to serious conflicts of jurisdictions in a narrower sense, the reader may turn to . the texts dealing with the recent UBS case (2009 and 2010) at different stages and from different perspectives as a case study: the Amicus Brief of Government of Switzerland in the John Doe Summons case in a Federal District Court in Florida; the opinion written by professors Thomas Cottier and René Matteotti, for the Swiss government on the principles and the domestic applicability of the Treaty Request Agreement between the Swiss Confederation and the United States of America of August 19, 2009; a text by Xavier Oberson on a series of Swiss court cases in the "affaire UBS" in matters of international taxation and an ex-post analysis by Thomas Cottier of the function of principle of legality in the domestic transformation and application of said treaty with the United States.

Nedim Vogt and Jens Drolshammer's text finally is an extended essay regarding the function of English as a new legal lingua franca in Swiss Legal Culture); the English language being the most powerful network and instrument of transporting legal contents and influences of Americanization and globalization into the legal world. Since the perception of others (Fremdsicht) and self-perception (Selbstsicht) has become an important factor in the communication of legal matters one may enjoy the self-restrained and general overview of the effects of American law on legal culture outside of the United States in the text by Arthur van Mehren and Peter Murray.
The influences of Europeanization and Americanization of Swiss law and legal culture are at the same time - depending on the issues and the area of law - parallel and at times curiously intertwined and indirect. Without giving relative weight to those influences the editors advise the reader and the user to first consult the part of the anthology on Europeanization and then turn to the part on Americanization - always keeping in mind that both processes are influences on Swiss law and legal culture after World War II of major and simultaneous and co-equal importance.

a) Background

The text at hand is an example of the purpose of this Anthology not to lose sight of the longstanding and special relationship between the United States and Switzerland in legal matters. The text "Pennsylvania and Switzerland": The American Origins of the Swiss Constitution is a good case of "how ideas travel" in a two-way street of cultural encounter and exchange in law and legal culture between Switzerland and the United States. The text is reprinted in the volume Varia Politica, which contains a selection of texts, re-edited for the occasion of the seventh birthday of William E. Rappard in 1953. The text is an extract of the monograph prepared by the author for the occasion of the Bicentennial Conference of the University of Pennsylvania in September 1940.

William Rappard started his career, as a young professor at Harvard University and thereof became an early representative of a rising school of international political science. He then is an eminent cosmopolitan professor of economics, economic history and political science in Geneva. He advised the government of Switzerland over a long period of time on key matters of foreign policy. From 1917 to 1919, William Rappard was a member of various Swiss diplomatic missions to Washington, D.C., London and Paris, including service with the Swiss delegation to the peace conference in France that ended the First World War. He made a strong impression on President Woodrow Wilson and was highly influential in persuading him to choose Geneva as headquarters of the League of Nations. William Rappard's greatest institutional contribution between the world wars was his co-founding in 1927 of the Graduate Institute for International Studies in Geneva, with Paul Mantoux, the internationally respected economic historian and expert on the industrial revolution. For many years he was Rector (President) of tge University of Geneva.

William Rappard was a close observer and avid scholar of complex cultural exchances in law and legal culture between Switzerland and the United States. The text at hand was already written in 1912 and published in the "American Academy of Political and Social Science". During World War II he had a principled discussion with Heinrich Goebbels at the home of essayist and diplomat Carl J. Burckhardt outside Geneva. He was an ardent conservative and guardian of swiss voices and briefly was a member of the Swiss Parliament. After World War II he was part of the delegation of Switzerland in the negotiations of the Washington Agreements, regularising the relationship between Switzerland and the United States after World War II. Besides having an American passport by origin he is a representative of the Romandie, the French speaking part of Switzerland. He mostly wrote his texts in French and in English.

William Rappard's greatest institutional contribution between the world wars was his co-founding in 1927 of the Graduate Institute for International Studies in Geneva, with Paul Mantoux, the internationally respected economic historian and expert on the industrial revolution.

b) Summary

The monograph itself, which extends over 70 pages, was considered too long to be reproduced in the volume. The text therefore only contains those parts that most clearly show the influence exercised by the American Constitution on the drafting of the Swiss Constitution of 1848. William Rappard's text analyses the subject as from a historical perspective, as all political science according to William Rappard must be, if it wishes to become worthy of its name. The text starts with the sentence "The deep constitutional gratitude which Switzerland owes to the United States in general and Philadelphia in particular is such that it can never be repaid".

The monograph itself, which extends over 70 pages, was considered too long to be reproduced in the volume. The text therefore only contains those parts that most clearly show the influence exercised by the American Constitution on the drafting of the Swiss Constitution of 1848. William Rappard's text analyses the subject from a historical perspective, as all political science according to William Rappard must be, if it wishes to be worthy of its name. The text starts with the sentence "The deep constitutional gratitude which Switzerland owes to the United States in general and Philadelphia in particular is such that it can never be repaid".

William Rappard continues as follows: "In 1848 the Swiss ship of state, after a stormy voyage of over 55 years, at last came to port. It found refuge in the constitutional harbor, which had been discovered and chartered by the American statesmen assembled in the Continental Congress in Philadelphia more than half a century before". According to Rappard, the transformation of the Swiss confederation to a fully-fledged nation state "was carried out in conscious and deliberate imitation of the American model". The text is not a summary of the constitutional history of Switzerland from 1798 to 1848; it is a recall of the most significant references to the American example made in public discussion in Switzerland in the course of half century and to show why it finally prevailed. Rappard devoted these sequences of excerpts exclusively to what might be called the case of American-Swiss Constitutional Contagion of 1798-1848.

The first extract of the "The Revolutionary Period" referring to Jean-Jacque Cart is a testimony for a Swiss lawyer having spent two years in Boston from 1769 to 1771. Back in Switzerland he practiced law in his home town before being forced to flee for being involved in the French revolution and settling as a farmer in New York. The revolution of 1798 brought him back to Switzerland; he became a member of a parliamentary formation and constantly drew on his American knowledge and experience. The excerpt dealing with the chapter "The Restoration 1814-1830" deals with the most active centre of Swiss political thought during the Restoration: the Helvetic Society, it highlights various writings of the President of the Helvetic Society, the historian Heinrich Zschokke.

Rappard then turns to the texts of the doctor philosopher Paul Ignanz Troxler in the monograph entitled "The struggle for and against the American System, 1834" and several pamphlets and texts; one of them a "draft fundamental law for the Swiss confederation". Troxler remained faithful to the conception of the draft outline throughout his life. Fifteen years later, he published one of his last political pamphlets under the title "The Constitution of the United States of America as a model for the Swiss Federal Reform" and together with other militant colleagues greatly influenced the formation of the Swiss constitution in 1848, in particular with respect to the introduction of a bicameral system. Rappard's conclusion of this collage and sequence of excerpts reads as follows:

"The story of how the United States, by the force of her example, contributed to the conversion of Switzerland to the principles of bicameral federalism, devised in Philadelphia in 1787, thus reaches its normal conclusion. It has been told with sufficient detail to be fastidious, I fear, but also, I venture to hope, with sufficient clarity to be enlightening. Its special historical interest is limited to the two democracies concerned and, even within their boundaries, is hardly such as to suggest any headlines that might startle the general public. What is of universal interest, however, is the lesson it teaches, the political lesson of how general union can be combined with local freedom. That lesson, which the disunited nations of the world have still to learn from the United States of America, as the united cantons of Switzerland learned it from them nearly a century ago, is one of peculiarly tragic timeliness today. That it has long been understood to be one of world importance is shown by a statement made more than seventy years ago by my fellow countryman Professor Rütimann. In the preface of his monumental comparative study of American and Swiss constitutional practice (see text 2.31), he wrote:

"The North American Union at present unites about forty states of quite unequal size and power in a community of law from which not only war, but also every other form of self-help, has been excluded as entirely dispensable. Likewise in small Switzerland, which was formerly decried as the seat of constant anarchy and wild discord, the federal state has since 1848 justified itself as a foundation on which the citizens of twenty-five cantons, in spite of their diversity of speech, of faith, of political views and of material interests, have been able to live together in happy and ordered circumstances and to develop in common a gratifying prosperity. If mankind is perfectible and capable of constant progress, Europe will also sooner or later come to see that its peoples are one to another as members of one body; that the solidarity between them is real; that every wound inflicted upon one of them spares none of the others; that any conflict between them is susceptible of a look upon our present international law in much the same light as that in which we today look upon the medieval law of reprisals".

c) Text

You can find a scan (PDF) of the original text here:
A_2.27_RAPPARD_Pennsylvania and Switzerland

a) Background

The following two texts out of the federalist and out of the anti-federalist papers are to identify the potential influences of Switzerland and Swiss law and legal culture on the formation of the constitution in 1787 of the American Union. From a Swiss perspective, we refer to the text 2.2 of Paul Widmer, der Einfluss der Schweiz auf die amerikanische Verfassung von 1787. The subsequent influence of the American constitution on Switzerland was by far greater than the areas of influence of Switzerland on the American constitution in 1787. Nevertheless, the influence is remarkable and interesting. Two factors plaid a major role, the writings and the acting of founding father John Adams, later president of the United States, and the incontestable influence of the antifederalists - federalists according to Swiss terminology - in favour of a confederation. Switzerland had a parlamentiary entity in the 18th century and a considerable visibility and influence. Whoever was about to draft and adopt a republican, federalist constitution was well advised, to look at the republics in the Alps. In the early United States certain groups have diligently undertaken this effort. Three postitions came simultaneosly to the founding fathers among the federalists - the centralist according to swiss terminology; a Madison and a Hamilton for instance studied the swiss confederation in detail.  The antifederalists left the Swiss confederation aside and considered it not usable for a nation like the United States, in particular in view of the size of the territory.  The federalists studied it but were less precise in the study of the Swiss circumstances.

They adored the spirit of the inhabitants of the Alps. They used Switzerland as crown witness against a centralisation and advocated the leaving of powers to the individual states. in turn John Adams, the first vice president and second president of the United States did not care for Switzerland as a whole. He used the parliamentary organisation of the individual Cantons to find in them arguments for a separation of powers. John Adams, above all was responsible for the timely introduction of Swiss thinking in to the American constitutional dialogue and discussion among the delegates to the Constitutional Convention in Philadelphia.

b) Summary

The Federalist No. 20 was written on December 11, 1787, by James Madison with the assistance of Alexander Hamilton. It was written to the people of the state of New York under the name of Publius. The text deals with the governmental textures of political entities, in particular the Cantons of Switzerland.

James Madison, Jr.(16th March 1751  - 28th June 1836) was an American statesman and political theorist. He is hailed as the "Father of the Constitution" for being instrumental in the drafting of the United States Constitution and as the key champion and author of the United States Bill of Rights. He was the fourth President of the United States (1809-1817). He served as a politician much of his adult life. Like other Virginia statesmen in the slave society, he was a slaveholder and part of the elite; he inherited his plantation known as Montpelier, and owned hundreds of slaves during his lifetime to cultivate tobacco and other crops.

After the constitution had been drafted, Madison became one of the leaders in the movement to ratify it. His collaboration with Alexander Hamilton and John Jay produced the Federalist Papers (1788). Circulated only in New York at the time, they would later be considered among the most important polemics in support of the Constitution. He was also a delegate to the Virginia constitutional ratifying convention, and was instrumental to the successful ratification effort in Virginia. Like most of his contemporaries, Madison changed his political views during his life. During the drafting and ratification of the constitution, he favored a strong national government, though later he grew to favor stronger state governments, before settling between the two extremes late in his life.

In 1789, Madison became a leader in the new House of Representatives, drafting many basic laws. He is notable for drafting the first ten amendments to the Constitution, and thus is known as the “Father of the Bill of Rights”.Madison worked closely with President George Washington to organize the new federal government. Breaking with Hamilton and what became the Federalist party in 1791, Madison and Thomas Jefferson organized what they called the Republican Party (later called by historians the Democratic-Republican Party) in opposition to key policies of the Federalists, especially the national bank and the Jay Treaty. He co-authored, along with Thomas Jefferson, the Kentucky and Virginia Resolutions in 1798 to protest the Alien and Sedition Acts.

As Jefferson's Secretary of State (1801-1809), Madison supervised the Louisiana Purchase, which doubled the nation's size. After his election to the presidency, he presided over renewed prosperity for several years. As president (1809-17), after the failure of diplomatic protests and a trade embargo against Great Britain, he led the nation into the War of 1812. He was responding to British encroachments on American honor and rights; in addition, he wanted to end the influence of the British among their American native allies, whose resistance blocked United States settlement in the Midwest around the Great Lakes. Madison found the war to be an administrative nightmare, as the United States had neither a strong army nor a financial system; as a result, he afterwards supported a stronger national government and a strong military, as well as the national bank, which he had long opposed.

References: http://en.wikipedia.org/wiki/James_Madison

a) Background

The following texts out of the anti-federalist papers are to identify the potential influences of Switzerland and Swiss law and legal culture on the formation of the constitution in 1787 at the time of the American union.

[The Swiss perspective is described in the text 2.2 of Paul Widmer, der Einfluss der Schweiz auf die amerikanische Verfassung von 1787. The subsequent influence of the American constitution on Switzerland and the development up to 1848, as said above, was by far greater than the areas of influence of Switzerland on the American constitution in 1787. Nevertheless, the influence is remarkable and interesting. Two factors played a major role: the writings and the acting of founding father John Adams, the first vice president and second president of the United States, and the incontestable influence of the antifederalists - federalists according to Swiss terminology - in favour of a confederation. Switzerland had a parliamentary entity in the 18th century and a considerable visibility and influence. Whoever was about to draft and adopt a republican, federalist constitution was well advised, to look at the republics in the Alps. In the early United States certain groups diligently  undertook this effort. Three positions had come simultaneously to the founding fathers among the federalists - the centralist according to Swiss terminology; a Madison and Hamilton for instance studied the Swiss confederation in detail.  The antifederalists left the Swiss confederation aside and considered it unusable for a nation like the United States, in particular in view of the size of the territory.  The federalists studied it but were imprecise in their study of the Swiss circumstances. They adored the spirit of the inhabitants of the Alps. They used Switzerland as crown witness against centralisation and advocated the leaving of powers to the individual states. In turn, John Adams,  did not care for Switzerland as a whole. He used the parliamentary organisation of the individual Cantons to find in them arguments for a separation of powers. John Adams, above all, was responsible for the timely introduction of Swiss thinking in to the American constitutional dialogue and discussion among the delegates to the Constitutional Convention in Philadelphia.

Among the more penetrating and comprehensive Anti-Federalist essays were those written by A [Maryland] Farmer in the Maryland Gazette during February, March and April of 1788 (for the first time reprinted in the Antifederalists, edited by Herbert J. Storing). According to Storing no direct evidence of authorship has been found. It seems likely though, that "a farmer" was John Francis Mercer, a non-signing member of the Constitutional Convention and an active Maryland Anti-Federalist. Born in Virginia, Mercer was educated at William and Mary, studied law under Thomas Jefferson, performed extensive military service during the Revolutionary War and represented Virginia in Congress. He moved to Maryland, where he was chosen to serve in the Federal Convention in 1787 but left before its work was finished. The text at hand was reprinted in the Maryland Gazette on 28th March 1788.

b) Summary

The discussion begins with “governments of simplicity and equal right,” which have not been dealt with faithfully in theory and practice (V. 5.1.69). For whatever reasons we seem to be tend¬ing toward mixed government with permanent and fixed orders. If this is our direction let us proceed slowly and carefully. Government by repre¬sentation “sets all system at defiance” by inducing constant change (V. 5.1.71). A representative system can only succeed if based on fixed and permanent orders, but the only such order in America is the yeomanry, which is powerless. The Constitution tries to erect a republic on the ruins of a corrupt monarchy. A government for the United States founded on repre¬sentation requires at least an executive for life and a senate also for life appointed by the executive. The problem is to prevent the executive from becoming hereditary, for which reason the vice presidency is important (V. 5.1.72-74). Having considered the dangers of representation and the requirements of a representative system - if that is what the United States must have - A Farmer returns in the conclusion of this essay to the advantages of simple government (V. 5.1.75-82).

The English system, although good for its kind, is undeservedly praised. It is a rational system, but it required the introduc¬tion of a ministerial system and corruption to support it and it does not prevent poverty in the lower orders and disorder. "England may be com¬pared with Switzerland, whose government is simple and in the hands of the people personally, where every citizen is legislator and soldier and where liberty, peace, and prosperity reign. Government should be in the hands of the people, that is, those who hold the property of the soil. With government in the hands of the freeholders, with reasonable sumptuary laws, and with the institution of seminaries of useful learning, the people would cease abusing their governments and would “wade up to their knees in blood” to defend them" (V, 5.1.82).

Stefan Trechsel was born in Bern in 1937. His father was the pastor of Boltigen im Simmental and his mother came from a Jewish family in Berlin. He attended school in Burgdorf and continued his studies in Bern. He passed the bar exam in 1963, went on to receive his doctorate in 1966 and took up the position as a private lecturer in 1972. Trechsel spent one year as a fellow in Washington, D.C. He was a state prosecutor in Bern from 1971 to 1975. Throughout he career he has taught at the Universities of Fribourg, Bern and Zurich as well as holding the position of Professor for Criminal Law and Criminal Procedure first at the University of St. Gallen from 1979 to 1999 and from 1999 to 2004 at the University of Zurich. In 2006 Trechsel assumed new functions as a judge at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague from which he retired in 2013.  While he works as an academic in penal law, his practical experience has mainly been in international human rights protection.

In 1975 Trechsel was elected member of the European Human Rights Commission of which he was President from 1995 to 1999. Trechsel is a member of various scientific bodies including the Steering Committee of the International Criminal Law Society and served for 12 years on the Board of Trustees and Advisory Board of the Max Planck Institute for Foreign and International Criminal Law and Criminology. He has participated in expert committees of the Confederation and the cantons of Zurich and St. Gallen for legislation in the areas of criminal law, criminal procedure and immigration law.

This biography has been translated and adapted from: http://www.rwi.uzh.ch/lehreforschung/alphabetisch/trechsel/person.html last accessed 14 May 2014.

Peter von Matt is an Emerite Professor of German literature at the University of Zurich. From 1957 to 1964 he studied German, anglistics and the history of art in Zurich. After graduation he worked as a teacher in the Gymnasium in Lucerne up until 1967. During this time he worked on his doctorate thesis on E.T.A Hoffmann and obtained his doctoral degree in 1970. From 1976 to 2002, he was a professor in new German literature at the University of Zurich. In 1980 von Matt was a visiting professor at the Stanford University in California. In the years 1992 and 1993, von Matt was a "Fellow am Wissenschaftskolleg zu Berlin."

Von Matt is a member of the (Orden) "Pour le Mérite für Wissenschaften und Künste", of the "Deutsche Akademie für Sprache und Dichtung", of the "Akademie der Wissenschaften Berlin", of the „Sächsichen Akademie der Künste" and the „Akademie der Künste Berlin". From 1989 to 1991, he was a member of the jury of the "Ingeborg-Bachmann-Award" in Klagenfurt. Von Matt has obtained the following awards: Johann-Heinrich-Merck-award for literary criticism and essays (1991); Johann-Peter-Hebel-award (1994); "Innerschweizer Kulturpreis" (1995); "Pour le mérite für Wissenschaften und Künste (1996); Award for Frankfurt's anthology (1998); Art award of Zurich (2000); „Friedrich-Märker-Preis für Essayisten" (2001); „Prix Européen de l'Essai Charles Veillon" (2002); German language award (2004); „Heinrich-Mann-Preis" (2006); „Brüder-Grimm-Preis der Philipps-Universität Marburg" (2007); „Jahrespreis der Stiftung für Abendländische Ethik und Kultur" (2011).

Von Matt regularly writes articles for the Frankfurter Anthology.  His major publications include: Die tintenblauen Eidgenossen. Über die literarische und politische Schweiz (München 2001); Öffentliche Verehrung der Luftgeister (München 2003); Die Intrige, Theorie und Praxis der Hinterlist (München 2006); Der Entflammte, Über Elias Canetti (Zürich 2007); Wörterleuchten, kleine Deutungen deutscher Gedichte (München 2011); Das Kalb vor der Gotthardpost, Zur Literatut und Politik der Schweiz (München 2012).

References: http://www.ds.uzh.ch/Institut/Mitarbeitende/index.php?detail=88&get=cv; http://lexikon.a-d-s.ch/edit/detail_a.php?id_autor=1165; Weblinks: http://www.portal.dnb.de/opac.htm?query=Woe%3D115817905&method=simpleSearch

a) Background

The text at hand is an essay in the form of a short book. It contains an extensive bibliography for further references. In the introduction the authors state that for years there has been an intriguing tendency in many aspects of today's worldwide legal profession towards an ever-increasing Anglo-Saxon influence as well as a growing trend of Americanization. This is of course particularly the case concerning European legal professionals and academics. However, it is not just this un-European process of "Anglification", but also the growing American dominance and pre-eminence of the Anglo-American culture that lawyers in the international practice of law have to deal with, exposed as they are to the challenges of these new realities and the internationalization of the practice of law in their day-to-day professional lives.

The function of professional legal English has fundamentally changed in recent years: English has become the legal field's lingua franca. This new reality has not only had a great impact on all legal professionals within a particular jurisdiction but also on the jurisdiction of its legal system itself. Very little is known about the "travels" and the mechanics and the wide impact of these new realities, particularly if one considers its enormous significance. In a changing world, there will be a need for new awareness and new strategies in the area of legal education, legal research, legal scholarship and the international legal professions. The ever-growing importance of the English language increasingly affects our society. This of course must also be seen in the context of many initiatives to deal with the larger issues of the function of the English language in our society, our daily life and the education of our children - English being presently the strongest network of the "brave new world" of Americanization as well as of Globalization.

The authors make the following suggestions and proposals for the multidimensional task of coping with the new realities of legal English. The authors favour an issue-driven and topical approach. The authors do not claim to have embarked on an academic adventure in the traditional sense. Many of the statements are based on observations and experiences, not on survey and research. The essay is meant to serve as a quarry to provide building blocks, gravel and sand for further discourse or analysis. It is inspired by the following working hypothesis: Law follows language and language often carries the law: Now is the age of Anglo-American Law and of English as the language of law.

Jens Drolshammer is an emeritus Professor of Law at the University of St. Gallen and a former founding and senior partner of an international commercial law firm in Zurich. He practiced internationally for many years dealing with issues of American law and legal culture. He has co-created at the University of St. Gallen a post-graduate masters program in European and international business law. In the past 15 years, he has focused his research activities and writing on the effects of globalization and americanization on law and - in particular - on legal professions. He has worked in that context from 1999 to 2008 seven times in the fall term as a Swiss visiting research professor at the Center for European Law Research at Harvard Law School, developing a new personalistic approach in analyzing effects of globalization, which lead to the publication of twenty essays in A Timely Turn to the Lawyer? - Globalization and the Americanization of Law and Legal Professions - Essays (2009).

Nedim Vogt has been a senior partner of a large commercial law firm in Zurich until 2010. He has an international education: he studied at Harvard Law School and worked for two years as a lawyer in a law firm in New York. He has been a well-known teacher of law at the University of Zurich from 1989 to 2011. He is the author, co-author and editor of numerous books and articles on trusts and inheritance law as well as on contracts and civil procedure. He is also the co-editor of a new series of commentaries on Swiss law.

Vogt and Drolshammer have been professional and personal friends for many years. They have embarked on several projects on the internationalization of the legal profession as well as on the role of language in law and on legal professions in general such as Swiss Law Bibliography, English Language Materials on Swiss Law (2005) and the text at hand, English as the Language of Law, an Essay on the Lingua Franca of a Shrinking World (2003). This essay was volume one of a once-planned series called Transatlantica - culture, language and law in a Transatlantic Context. This project, despite its prominent international advisory board for commercial reasons, did not succeed. 

b) Summary

The text situates the issue in the Internationalization of Practice of Law as an example and highlights the importance of English as a legal language. The text analyses the current use of the English legal language by the legal professions. It particularly highlights the international impact of Swiss law as well. It describes the relevance of legal English for Switzerland as a reality for the legal professions and identifies "potentials" and "constraints" of the use of English as a legal language in Switzerland. The text postulates elements of a strategy to deal with English as a language of law in general as well as the particular needs for a strategy in the area of legal education and legal research, legal professions and legal professional associations. The text then turns to further challenges in an age of globalization behind the lines, in view of the under researched issues of law of the interdependence and interlinking of the dimension of law and the dimension of communication in a globalised legal world in the information age.

The text deals with issues such as: Defending Europe: The Necessity of Communication in English, which states that it will become increasingly important for non-English speakers and for non-Anglo-Saxon jurisdictions to be able to communicate their own values and concepts of legal systems, professions and education in English in order to make themselves heard and understood by the English-speaking community. The form of international oriented self-defence or self-assurance will be an important and considerable challenge in the near future. The text ends with a call for further action from a trans-Atlantic perspective.

The book cites a quotation of George Steiner from his seminal essay: "After Babel, Aspects of Language and Translation" at the very end, which strikes yet a more subtle chord: "Both in 1975 and 1992, I sought to conjecture as to the polyglot future in the face of the global detergence by an Anglo-American Esperanto, itself splitting into more local though cognate forms. Thus one is tempted to suppose that the triumphalism of science, of technocracy, of international finance and the mass-market media will assure the long-term hegemony of Anglo-American (computer languages reflect and enforce this prepotence). Reality, however, is always subtler and more ironic than our suppositions. It may well be that the Tower of Babel will continue to cast its creative shadow."

c) Text

You can find a scan (PDF) of the original text here:
A_2.54_DROLSHAMMER_English as the Language of Law

a) Background

Law in the United States, is a description of the basic elements of the American legal system designed mainly for students with a civil law background. The focus is on those attributes of American law that are believed to be unfamiliar to jurisdictions from other legal traditions such as American common law, the federal structure of the US legal system and the American constitutional tradition. The use of comparative law technique permits us to study the American legal system in comparison with legal systems with which they are already familiar. The chapters in the second edition also cover topics such as American civil justice, criminal law, industrial property, choice of law and international jurisdiction, the American legal profession and the influence of American law on the global legal order. The text at hand - an excerpt - is the final chapter of the small book. It is a non-Swiss perspective on the international role and positioning of the American legal system in the world today. It is one of the rare texts written by non-Swiss lawyers in this collection.

Arthur van Mehren was a world-renowned scholar in international and comparative law, whose work influenced generations of lawyers around the globe. He was a towering figure in American law school teaching and in American legal research. He was fluent in several languages, taught in many countries and written ten books along with hundreds of articles on various aspects of comparative, international law, including conflicts of law and jurisdiction. He was a true bridge builder in trans-Atlantic legal matters after World War II. He had a large international network of colleagues and students who revered him as an older statesman, colleague and friend.

Peter L. Murray is an emeritus (2010) Professor of Law from Practice at Harvard Law School in Cambridge. He regularly was a Senior Fulbright Professor at the University of Freiburg in Breisgau and a Lecturer of Law at the University of St. Gallen in the Executive Masters of European and International Business Law Program. Murray had originally for many years been in private practice in Maine. He is a specialist in evidence and civil procedure. He is a comparative lawyer particularly known for comparative civil procedure and has an institutional relationship with the University of Freiburg, Germany. He is fluent in German. He was an architect and craftsman of many international endeavors - small and tall - in Harvard Law School for many years.

Van Mehren and Murray became close friends in the later part of their careers at Harvard Law School. When van Mehren became frail, he often co-taught courses with Murray. It therefore is a sign of respect and personal friendship that when this short introductory book on law in the United States was to appear in a second edition, Murray became its co-author. The book originally was called Law in the United States, a general and comparative review. It grew out of lectures that van Mehren gave in the fall of 1983 and the spring of 1984 at the University of Ghent.

Both authors have a special relationship to Swiss law, law schools and legal scholars. Van Mehren after World War II during his three years study of civil law systems was a young assistant professor of law - at the request of Roscoe Pound, the dean of Harvard Law School - in Paris, Berlin and in Zurich. Murray has often taught at the University of St. Gallen. Both of them have many friends and alumnis in Switzerland, when they have been teaching in various functions throughout their careers.

b) Summary

Characterization and structure of the book Because it is essential for a sophisticated observer of the role of the United States after World War II to be able to change and take note of other perspectives of the influence of American law on the legal process of Globalization, this summary is more extensive, commensurate with the purpose of this part of the collection on the Americanization of Swiss law and legal culture.

The text at hand, which is the final chapter of the second edition of Law in the United States by Arthur van Mehren and Peter Murray, was published in 2007. The excerpt is chapter eleven entitled The United States and the global legal Community. The text is written from an American perspective and is divided as follows: The American legal system in the world context; American Private Law in the Modern World; American Litigation Abroad; American public law and the modern democratic world; America and the World Language of Law; American legal culture on the world scene; () America and world public law and America and the legal world of the future. We take the liberty to paraphrase the views of the authors, which is important for the better understanding of this part of the collection on Americanization.

Little attention to American law at 1950 times Van Mehren and Murray state that unlike Roman law, which exerted influence over the world's legal system for nearly a millennium, or even English, French or German law, which spread to much of the then-civilized world during the 19th and earlier 20th century, American law and legal institutions were not given much attention by other countries until the middle of the 20th century. This was largely because (1) in contrast to the major European Powers, America did not found many colonies abroad; (2) America's early economic activity was focused on developing its own vast territory; (3) American Law was not in a forum that encouraged exports and emulation; and (4) the international language of discussion and exchange was French and in scientific matters German and America's language was widely spoken only within the Empire of its motherland and cultural competitor Great Britain. American law has traditionally not been susceptible to easy export and emulation abroad in particular because of its uncodified common law form as well as the peculiar and extreme form of American federalism. These preconditions changed at the end of World War II. The political and economic strength of the United States following the war and continuing throughout the latter part of the 20th century have led to the export of American public and private law in several forms.

Areas of influences of American law after 1950 The modern roots of European constitutionalism were clearly found in the American theory of government. Many areas of influence in the post-World War II period were indirect. On the other hand, van Mehren and Murray argue that in important areas of present key law making and law practice, the American influence is profound and ongoing. In the area of American private law in the modern world it is not any concerted governmental activity on either side of the Atlantic or Pacific that counts for the current worldwide influence of American law and legal institutions. It is the result of private negotiations, in which American law is chosen to govern major transactions; the role of international financial institutions, founded in part by the United States, that condition financing participation on American-style legal arrangements; and a more diffuse but no less effective transmission, via educational and cultural means. Private law began to become relevant in London, Frankfurt and Paris in particular because of increasing internationalisation of major American enterprises. The export of the American private law to protect American economic legal actors has been intertwined by a form of law export that is connected with the kinds of economic and financial transactions themselves. The vehicles for the dissemination of the American legal doctrine and the activity of certain international financing organisations are particularly the International Monetary Fund (IMF) and the World Bank. A similar form of law export has been connected with the activities of the World Trade Organization (WTO). Other areas of influences: civilization, constitutionalism and democracy, public law, language and international law.

Another area in which American law has made itself felt abroad, sometimes according to the authors to an inordinate extent, is the field of civilization. The expansiveness of American concepts of international jurisdiction has brought peculiar features of American tort law to the doorsteps of the rest of the world. A welcoming expansiveness of American civil jurisdiction is prevented by American choice of law requiring that sometimes, American legal norms should be applied to circumstances that seem much more closely related to the legal and social priorities of another jurisdiction.

The aspects of American democracy and its public legal order have been admired since the claims of Tocqueville. According to van Mehren and Murray, some of them, such as the written constitution and the notion of traditional elaboration of that constitution, have served as models for several developments worldwide. Again American constitutionalism and much of American public law do not lend themselves to easy adoption. Themes of public law have found widespread resistance abroad with the exceptions such as the concept of judicial review and, at times, the institution of jury trial. In those areas where American public law has developed to manage and govern the modern economy, there has been a degree of influence based upon the actual merits of the solutions reached. The influence of American law and legal institutions throughout the world has been furthered by the general acceptance of English as the world language. In recent years, English has also become the world language of law. The universal knowledge and the use of the English language - particularly in connection with the world wide web - makes American law and legal culture immediately accessible to practically anyone in the world who has a good secondary education. The lack of theoretical structures of American law makes it, according to the authors, more accessible to persons not imbued with the English language from birth.

The influence of American law is closely related to the spread of American popular and general culture throughout the world. In the foreground with respect to law is the American media culture. This phenomenon of popular culture is complemented by the intense interest of foreign lawyers in exposure to American legal education.

The outward orientation according to van Mehren and Murray with respect to its own institutions and rules of private law is not matched by a corresponding receptiveness to international law and supranational regiments governing all nations of the globe, including the United States. The United States has historically been somewhat reluctant to embrace international treaties and alliances. World War II brought the United States out of its traditional isolation. The engagement with international law and legal institutions began to diminish after the disastrous experience in Vietnam. It cannot be denied that America's recent actions have tended to undermine the influence of American institutions of public law in the world at large. The preconditions pose an interesting dichotomy over the second half of the 20th century: American influence on private law and legal culture, and to a lesser extent international public law, has been profound and is ongoing, but at the same time, American engagement in international law and legal institutions is now seen as rather negative and in disrepute.

The role of American power in the future - the role of civil process With respect to the influence of America and the legal world in general some predictions pretend that the influence of private law is based on economic power. It is likely – this is the argument of the authors van Mehren and Murray - that American law will continue to be exported in the area of private law. It is difficult to imagine that the United States will maintain the degree of influence exercised over the last fifty years as a source of national public law. On the other hand American laws will continue to be promoted by the use of English as an international language. American civil litigation will only come reluctantly in line with the rest of the world. The approach, a unified world economy with differences among the civil justice systems, that serves that economy will tend to finish. Finally according to van Mehren and Murray it seems clear that American exceptionalism vis-à-vis international public law is a finite phenomenon. It is hoped that the decline of America's comparative economic and political power will occur in such a manner as to preserve international order and spare current and future generations of American citizens the consequences of violence. It is also hoped that lasting influences of the pre-eminence of economic, legal, and cultural institutions resist and enrich the world long after the political and economic power that originally protected them has waned.

[The Reception of American Law]

a) Background

The text at hand deals with the "reception" of United States law in the Swiss legal system, an as yet unanalyzed phenomenon of post-World War II international developments. Wolfgang Wiegand's major thesis - later criticized by international comparatives - is that there is a parallel between the reception of Roman law in the Middle Ages in Europe and the reception of American law in today's Europe. This not only results in significant changes in legislative and legal thinking but also leads to a paradigmatic change in Swiss law and legal culture.

The text at hand is a rare example of lawyers in Switzerland dealing with the process of Americanization from a theoretical perspective. It is the only text in the part on Americanization in the Anthology, which in the aftermath of its release raised international attention.

Wolfgang Wiegand is an Professor Emeritus for Civil, Commercial and Banking Law at the University of Bern. He has a German legal education and has been teaching in Switzerland for almost thirty years as a professor. Wiegand has a keen interest on comparative law issues, as evidenced by the text at hand. The text has been criticized because of the far-reaching implications of the use of the comparative law concept of "Rezeption" (reception) for the phenomena described. According to Wiegand the development of Americanization of law has not been analysed or recognized in the literature beyond the usual remarks here and there about the (negative) influence of American law and American "legal imperialism". There was no real study of the reasons for this "imperialism" or its consequences, Wiegand noted in 1988. The text appeared as a contribution of the law faculty of the University of Bern to the Festschrift at the Schweizerischer Juristentag 1988 (the annual meeting of the Swiss Lawyers Association) in Bern. This is in keeping with the tradition that if the annual meeting of the Swiss Lawyers Association takes place in a city or canton that has a University with a law faculty, the members of the faculty are the editors and contributors of the respective Festschrift. The Festschrift had the title "Die Schweizerische Rechtsordnung in ihren internatonalen Bezügen" (The Swiss legal system and it's international dimensions). This is the first time that after World War II the "official" Swiss Lawyers Association has chosen the internationalization of Swiss law as the key topic. Further occasions were the annual meetings of in St. Gallen (2002) and in Geneva (2012).

b) Summary

Wolfgang Wiegand's analysis of facts and observations comes to the conclusion that the study of law at an American university, post-World War II, has in Switzerland a similar value and comparable function as the study of jus commune in the Middle Ages. He observes a preponderance of American-trained lawyers in universities, industry and the bar, with regards to the numbers of the lawyers, the working style and the structure of the law firms.

Wiegang then notes in a variety of areas of the legal system a specific reception of American law in Swiss law. The text identifies new types of business and contracts, new instruments and institutions of law such as trusts and leasing, various developments of economic law such as business law, capital markets and banking, as well as general liability and product liability law, producers' liability and constitutional law.

Wiegand notes that besides this seizure of law and legal thinking, more and more American theoretical methods in law are being taken over by the continent of Europe; he is one of the very early authors in Switzerland to note the potential "travel" of the economic analysis of law across the Atlantic Ocean.

Based upon the comparison to the reception of jus commune in the Middle Ages, Wiegand comes to the conclusion that the reception of American law is an irreversible and unstoppable process. It does not serve to analyse the real reasons and the extent of the process, if one discredits the process as an expression of "American legal hegemony". Wiegang followed up on the topic in later articles published in English; see Wolfgang Wiegand, 'Reception of American Law in Europe', American Journal of Comparative law (1991) pages 229 ff. and Wolfgang Wiegand, 'Reception or Convergence?' in Lawrence Friedman/Harry W. Schreiber (eds.), Legal Culture and the Legal Profession (1996), pages 137 ff.

2.35 Jens Drolshammer, excerpt: The Role and the Tendencies of Americanization for Legal Systems, Legal Professions and Legal Educations in the Area of the International Practice of Law, in The Effects of Globalization on Legal Education, Zürich, 2003, p. 1 - 63; excerpt

a) Background

The text is the first chapter of a translated earlier book on the effects of globalization on legal education (2001 and 2003). The book was a special report to the Schweizerischer Juristentag (Swiss Lawyers Conference) in 2002 on the effects of globalization on Swiss economic law. The text is written from a European perspective, in an Anglo-Saxon, bottom-up, issue-driven and largely phenomenological manner. The introduction and the chapter of the book is a look into the kaleidoscope of globalization, a collage of interrelated "objets trouvés".

Jens Drolshammer is a Professor Emeritus of Law at the University of St. Gallen and a former founding and senior partner of an international commercial law firm in Zurich. He practiced internationally for many years dealing with issues of American law and legal culture. He worked in that context from 1999 to 2008 as a visiting research professor at the center of European law research at the Law School of Harvard University, developing a new personalistic approach in analyzing the "travels" and the "impacts" of globalization, which lead to the publication of twenty essays in A Timely Turn to the Lawyer? - Globalization and the Americanization of Law and Legal Professions - Essays (2009).

b) Summary

The book The Effects of Globalization on Legal Education is a blueprint for a professional and network based reorganization and reconfiguration of legal education from an international perspective. The text at hand is the introduction of the part on education.

The text primarily deals with new challenges for the science and the practice of law in connection with a growing interdependence of the world economy. The text analyses and describes the internationalization of law and its effects on the activities of lawyers primarily in the international practice of law. The text describes the vital and dynamic Anglo-Saxon and special American influence on law and legal culture, in particular on the "International Practice of Law". The sedes materie of the spread and "travel" of American legal culture lies in the increasing hegemony of the United States in an ever more globalized world. Actually, this trend cannot be held solely responsible for the occurrence of globalization and its effects; authoritative observers take the view that it would take place even without the influential position of the United States. In practice however, the trend of Americanization dominates; its far-reaching effects and its intensity are further accentuated by the development of the information society. The increasing US dominance observed in international relations, both in foreign and security policy, in the economy and in information society is also influencing law, legal education and the legal professions. In that context, the text focuses on 'new international lawyers' as pivotal actors of the process of globalization in law.

The text describes the changes in growth of the International Practice of Law and identifies the key elements that drive those changes in the international practice such as globalization, legalization, informatization, growing interdisciplinary research, professionalization, market orientation, commercialization, specialization, proceduralization, and a marked tendency for Americanization. As a further prerequisite for the developing of a blueprint of a legal education of the new international lawyering in globalization, the text lays the groundwork for a more active and assertive attitude and mind-set in Switzerland vis-à-vis this growing and complex influence of dependency on Americanization.  The text contains on a meta level an agenda for the formation of a strategy in Switzerland to deal with the phenomenon. The text contains elements of such a strategy in the area of teaching and research, legal policy, professions and professional organisations and information policy and communication. Without a basic change in mind-set to face the encounters with American law and legal culture, it is obvious that any efforts to reconstruct the education of a new international lawyer are likely to be cumbersome and difficult.

c) Text

You can find a scan (PDF) of the original text here: A_2.35_DROLSHAMMER_Role and the Tendencies

Heinrich Schneider studied political science and sociology in Cleveland (Ohio). He obtained his Doctor Phil. at the University of Munich. He is an Emerite Professor for Political Science at the University of Vienna. He is an honorary President of the Wirtschaftliches Direktorium des Institutes für Europäisches Politik, Berlin. He was a Professor of Political Science among others in Hannover and Vienna. In 1995/1996 he held the Jacques Delors chair for European Policy in Aachen. He worked in security policy matters, among others, based upon his years in participating in international conferences (for instance as the Chief of Mission of Holy Sea and at OSZE). Schneider is the author and editor of numerous books, articles and a contributory to international encyclopedias mainly focusing on international politics, European integration, security policy, political education, as well as his history and theory of political thought.

References: http://www.bmlv.gv.at/wissen-forschung/publikationen/person.php?id=221

[the crux of the debates on dormant accounts in Switzerland ]

a) Background

The sudden upsurge of the Holocaust issue strongly promoted by the United States and spearheaded by Stuart Eizenstat, then Under-Secretary of Commerce and Special Envoy of the Department of State, brought Switzerland to the world's attention and led to a highly contested debate in the international public arena. The issue of the Holocaust sailed under the heading of redressing the remaining unresolved injustices of World War II. Controlling was an enlarged concept of morality reaching beyond the traditional concept of law. The conflict was driven by an American concept of law and particularly legal culture. These controversies amounted to the most contested impact on Swiss identity by the United States after World War II. Switzerland was a major target and perceived itself - caught off guard – as a victim by at times destructive accusations that went far beyond issues under the laws of neutrality. After the resolution of the issue of gold transactions in the Washington Accord a sudden upsurge brought to the fore issues such as dormant accounts, insurance policies, slave labourers and looted assets: This led to a long and arduous learning process. The contested international conflict led to the direct involvement of Swiss enterprises such as banks and insurance companies. Switzerland and those actors were squarely faced with the constraints of traditional notions of historians' views on the issue and with traditional mostly legalistic views of the major legal actors in the handling of the issues of law and legal culture. In that context, history and historians played a major role in bringing about a historic change of mind set and an internationally acceptable posture dealing with the issues. Switzerland's policy in World War II came though under thorough examination by two commissions that consisted of both Swiss and foreign members. They were the Volcker Commission, which examined assets in dormant bank accounts and the Bergier Commission, which examined the entire historical relationship of Switzerland to Nazi Germany. These commissions acted with a high degree of transparency and the results of their findings were widely published.

The "case" study at hand focuses in this part of the anthology on the issue of dormant bank accounts in the major Swiss banks, which is only one of the issues of the Holocaust debate. The refusal of the Swiss government to accept responsibility with regards the issue of the Holocaust, which was internationally acceptable, led to a problematic deferral of the responsibilities to the private enterprises themselves.

The breaking out of the issue of dormant accounts had its roots in behaviours of those banks during World War II, in the aftermath of the Washington Accord and in the sixties in domestic affairs. The conflict at hand lead to a "global solution", which retrospectively has been described in an authoritative book by the historian Thomas Maissen in 2004 with the title "memory refused"(Verweigerte Erinnerung).

Maissen was originally a journalist, working for eight years as editor of the Neue Zürcher Zeitung where he was responsible for the “Historical Analysis”. Since 2004, Maissen has been a full Professor of early modern history at Heidelberg University. In 2006, Maissen became a prominent member of national and international historic Commissions. Maissen was one of the key-persons to bring about a changed and more modern view and mind-set to the discipline of history relating to the behaviour of Switzerland and Swiss enterprises during and after World War II. Maissen among others is the author of a widely read history view of Switzerland.

The text is the concluding summary, under the subtitle Worum ging es? (de quoi- s'agissait il?), of the book Memory Refused: Dormant Accounts and the Debate on World War II 1989 to 2004. The list of the major chapters of the book should enlighten the user and help to better situate the final text on the crux of the issue of dormant accounts solved by a global settlement: The introduction I, leading up to the debate II, parameters and frame work of the World War II debate (III), and the chronological description of the negotiations and of the conflict (IV). The book is written for a larger public, it is largely interview-based and profits from the journalistic skills of Maissen. The book and especially the text at hand, breathes an air of restrained shock and indignation. While a strategist usually raises the key question de quoi s'agit-il? before creating a strategy, the historian Thomas Maissen asks the question after the fact: de quoi s-agissait-il?

b) Summary

At the end "the Settlement of the issue of dormant accounts was a global solution" when it should have been the goal of the Swiss government and the Swiss banks at the outset. The Swiss strived to find the "truth" which the course of events showed, cannot objectively be established. This search for "truth" brought Switzerland into a mediatised world tribunal of public opinion, in which it was inferior to its antagonists. According to Maissen, the Holocaust issue was "not only about money" and the amount of money, 1.25 billion dollars, was to a certain extent immaterial as the Swiss perception was that it had surrendered to adversaries, which only were after money, using unjust and offending arguments which led to the high surmounting to an extortion.

The text sheds light on the "historic guilt" of the Swiss financial sector during and after World War II in handling among others the issues of dormant accounts. The real problem according to Maissen was that the Swiss government deferred the issue of handling the conflict to the Swiss banks and refused to act as a responsible actor in the issue of the Holocaust. While the United States gave to Ambassador Stuart Eizenstat a special mandate to deal and negotiate, the Swiss government refused to empower the head of task-force Ambassador Thomas Borer with adequate powers. As a matter of fact, despite the transparent results of the Bergier Commission of historians the Swiss government refused to face the issue by a refusal of memory. Instead the defence of a backward looking concept of "honour" prevented an actual and forward looking posture to come to terms with the necessity of a post-modern search in the replacement of the Westfalian system of states. This self-denial resulted in a series of timid and inadequate actions, which basically were a series of reactions and lead to an international learning process of coming to terms with the Holocaust issue. The text describes the policies of a legalistic approach of the lawyers involved which, were unable and unfit to handle the American concept of law and legal culture, which had gradually established a global reach and become a dynamic and accepted element of societal expectation to changes.

c) Text

You can find a scan (PDF) of the original text here:
A_2.49_MAISSEN_Worum ging es

a) Background

The text at hand is an Amicus Brief of the Government of Switzerland to the United States District Court for the Southern District of Florida, Miami Division, in the enforcement proceedings a John Doe Summons action filed earlier by the IRS; the second document is a so-called sur-reply brief. The causa UBS with which the following three texts in this part of the anthology deal is an important example of the clash of legal cultures, once the United States based upon policy and legal considerations starts to actively and aggressively enforce its laws extraterritorially. Since the four following texts are devoted to the UBS case and since the facts and law involved are complex, the introductions are a close-up descriptions of the mechanics and workings of a conflict of jurisdiction between the United States and Switzerland, this being the most direct and intense impact of US law on Swiss law and legal culture.

The history of the case In tax law Switzerland only granted legal assistance based upon the respective provisions in a double taxation treaty. Until recently, Switzerland took the position that legal assistance can only be given in cases of tax fraud (Steuerbetrug), but not in cases of tax evasion (Steuerhinterziehung). Therefore, until 2009, in light of the Swiss banking secrecy the Federal Tax Authorities did not give legal assistance even in cases of obvious but not fraudulent cases of tax evasion. The cases are to be seen against the background of a systematic business model of Swiss banks and the Swiss traditional policies of the financial centre, which actively attracted untaxed money with the help of legal provisions protecting the so-called banking secret. This trade and foreign commerce policy perspective together with the banking secrecy was an instrument of protection of financial structures and of the banking industry of the Swiss financial center in international competition for financial services. This business model and traditional policies led to a restrictive practice of legal assistance in the aftermath.

As part of the financial crises of 2008 and in view of a coordination of an internationalization of the issues within the OECD and then the Group of 20 (G20), Switzerland came under pressure to change its policy within the OECD, to renegotiate the double taxation treaties and accept legal assistance for tax evasion as well. The US in turn, based upon serious violations of American law on American territory by asset managers of UBS, started to pursue UBS on criminal legal grounds.

The facts of the case Based upon the double taxation treaty between Switzerland and the US of the 2nd October 1966, the IRS in 2008 communicated to Switzerland a respective request for legal assistance in approximately 300 cases. The Federal Tax Administration and the Finance Department of Switzerland first did not consider it necessary to deal with the request in a timely and efficient manner nor to use adequate and sophisticated means when it did. As in the past it was hoped to get by with the use of the old dilatory tactic of a wait and see. The IRS consequently started civil action (John Doe Summons) against UBS in a Federal District Court with the potential effect that the bank could be forced to violate article 47 of the Swiss banking law statute and article 271 and 273 of the Swiss criminal code. The enforcement proceeding covering about 50,000 accounts involving all legal cases of tax evasion (Steuerhinterziehung) was entered immediately after the conclusion of a so-called Deferred Prosecution Agreement between the Justice Department of the United States and UBS temporarily halting the criminal investigation. UBS had to pay a heavy fine of 780 million dollars, was forced into strict compliance programs and had to end any business activity in trans-border banking in US shares for American clients. The intensive pursuit of UBS in a criminal proceeding was among others fueled by a serious irritation felt by the IRS and the United States about the dilatory treatment of the first request for legal assistance in 2008.

The perceived threat of UBS was that in case of noncompliance UBS would be indicted and could therefore lose among other things its banking licence in the US. The United States forced Switzerland and the UBS to disclose, as a condition to signing the Deferred Prosecution Agreement, 255 identities of accounts, which the Federal Council did not put into effect based upon emergency law provisions but referred to FINMA, the supervisory authorities on banks, who in turn ordered UBS to disclose those identities to the IRS based upon provisions of the statute governing banks. The IRS then pursued the civil action in John Doe Summons case by entering into the enforcement stage. This in turn led the Swiss Federal Council to qualify the issue as serious potential conflict of jurisdiction between the two countries. The Department of Justice took over the lead from the Department of Finances in handling the issue.

The amicus curiae brief and the surbrief The documents at hand together with a Swiss diplomatic note were entered into files of the civil law proceedings in the Federal District Court in Florida as Amicus Curiae Brief on behalf of the Swiss Government. As the text shows, Switzerland argued against the enforcement of the John Doe Summons by arguing that it violates the Swiss American Double Taxation Treaty of 1996, which requires the party to the treaty to obtain evidence abroad by using the legal assistance route. The Brief moreover argues that it is a violation of international public law to force somebody in national courts to violate the laws of the other country. Based upon international comity and under the threat of the Federal Council preparing a blocking order prohibiting UBS to hand over the data requested, the judge granted a temporary stay of the proceedings in order to give Switzerland and the United States a chance to solve their issues consensually. On that basis,

The so-called UBS-agreement on legal assistance was negotiated and concluded on the 19th August 2009. The agreement came about based on the initiative of Switzerland. It provided for formal legal assistance proceedings in 4,550 requests in one year based upon criteria set forward in the annex to the treaty.

After having been formally accepted by the judge, the Amicus Curiae Brief and the sur-reply brief were put on the website of the court, by means of which the judge organized and commanded the proceedings in a structured manner.

The opinion of professors Thomas Cottier and René Matteotti (text 2.51), who dealt with the UBS-agreement and the article of Thomas Cottier (text 2.53), is a retrospective analysis of the role of the general and constitutional principle of law of legality to conduct and put into effect such a foreign policy based agreement by and within Switzerland.

b)    Summary

The Amicus Curiae Briefs are public documents. In this specific case the document has been worded by the lead lawyer of the Washington law firm advising the Swiss Embassy in Washington D.C.. On the Swiss side, the Swiss Embassy in Washington was assisted by the Directorate of International Public Law in the Department of Foreign Policy and the Federal Office of Justice of Switzerland, who was to deal with the issue on behalf of the Swiss government. Parallel to these diplomatic and legal steps a blocking order was prepared by the Federal Office of Justice. This was a complex exercise since the data to be covered by the blocking order against UBS AG was "located" on a great number of servers in and outside of Switzerland. Threats to issue and issuing of a blocking order have a tradition in Switzerland; one may recall the Marc Rich case. The tradition to present its position on matters of international law touching upon Swiss sovereignty in a Amicus Curiae Brief in American civil proceedings is common practice. The Amicus Curiae Brief is an instrument of procedural law provided for in the applicable Rules of Civil Procedure of the United States in civil cases. Switzerland is not a party to the case; therefore, it acted as Amicus Curiae.

The Amicus Curiae Brief has to be written observing a prescribed budget of pages and following a generally standardized format. The Amicus Curiae Brief lists a table of legal authorities such as US cases, US legislative and administrative materials, treaties and conventions, Swiss legislative and administrative materials, international cases and miscellaneous documents. In the Amicus Curiae Brief Switzerland argues in the UBS case the interest of the Amicus Curiae. It makes a statement of the relevant facts provided by Swiss domestic law, Swiss cooperation in international law enforcement, the double taxation treaty, negotiations to amend the treaty and international information exchanges regarding the UBS matter.

At the core the Amicus Curiae Brief contains the legal arguments. In the specific case the US Government attempts to obtain information through the summons being inconsistent with the tax treaty, (1), compliance with a summons would directly violate Swiss law (2), and the IRS has no reasonable expectation of receiving information in response to a "fishing expedition", (3) and the imposition of an order to compel enforcement of the summons would be inconsistent with international comity. Attached to the amicus curiae briefs are a Diplomatic Note from the embassy of Switzerland to US Department of State of the 29th April  2009 and affidavits of officials of the Federal Justice and the Tax Authorities of the Swiss Government.

The attached sur-reply brief is a response of Amicus Curiae of the government of Switzerland to a 30th June submission of the IRS, which is a reply to the Swiss Amicus Curiae Brief. The major headings are that Swiss law prohibits compliance with the summons and comity entails respect among nations, not between the IRS and a foreign company.

c)    Text

You can find a scan (PDF) of the original text here:
A_2.50_Amicus Brief

[Recent developments in the laws concerning international legal assistance in tax matters particularly as regards to the United States: Seven lessons to be drawn from the "UBS affair"]

a) Background

The text at hand is a contribution to the Festschrift of the Faculty of Law at the University of Geneva to the annual meeting of the Swiss Lawyers Association in 2012 with the title "Genève au confluent du droit interne et du droit internationale". It is a tradition that if the venue chosen for an annual meeting of the Swiss Lawyers Association is a city with a University, the faculty of law of that University writes and edits a Festschrift for the occasion. These Festschrifts usually deal with the Leitmotiv of the respective annual meeting, in the particular case in Geneva "das Schweizerisches Recht vor der Herausforderung des internationalen Rechts" (Swiss law facing the challenges of international law). As indicated in the introduction of this part of the collection, the post-World War II period of the legal relationship between Switzerland and the United States has again and again been marked by specific legal cases, some of them leading to a conflict of jurisdiction. Oberson's text is part of the study of the impact on Swiss law in conflicts of jurisdiction with the United States. The text at hands is a complete overview of the series of court cases dealing with "UBS affairs" in front of Swiss courts.

The text has to be read in the conjunction with the other texts contained in the collection on the Amicus Curiae Brief of government of Switzerland, the enforcement proceedings of the Jon Doe Summons in front a federal district court in Florida (see text 2.50), the legal opinion for the Federal Office of Justice of the Swiss Government "The Treaty Request Agreement between the Swiss Confederation and the United States of America of August 19, 2009 (UBS-Agreement)" by professors Thomas Cottier and René Matteotti (see text 2.51)and the postmortem text "Tax fraud or the like" of Thomas Cottier (text 2.53) on considerations and lessons learned in connection with the function of the principle of legality in the laws of treaties in Swiss law.

Xavier Oberson has been a Professor of Swiss and International Tax Law at the University of Geneva since 1995. He is the director of the LLM tax program at the University of Geneva and is a member of the federal commission for tax harmonisation. He is the senior partner of a highly regarded specialized law firm, active in the field of taxation.

Oberson was among others closely involved with the issues called the "affaire UBS" (the UBS-case). He has been a member of the expert commission on international taxation and banking secrecy of the Swiss government of 2009. Oberson was also a member of the Swiss delegation negotiating in 2009 the respective changes of the Swiss Double Taxation Treaty with the United States, integrating new OECD-based standards of international legal assistance under great pressure from the international community. Oberson is known to have been consulting out of Geneva in the matter as well.

Because of the cut-off date of the editors work at the end of May 2013 the text and the comments do not address the most recent developments, in which the United States government will attempt to settle the issue with four groups of Swiss banks involved in aiding US clients to avoid paying taxes in the US. This will hopefully amount to a definitive solution of - all based on the UBS case - of this cloud of the most recent history of the legal relationship between Switzerland and the United States.

b) Summary

The text is situated at the time of a fundamental change of the Swiss government's position in international legal assistance in tax matters to follow OECD standards. The introduction contains a detailed description of the role and function of the double taxation treaty between Switzerland and the United States of 1996 and the corresponding memorandum of understanding (MOU) to this double taxation treaty particularly dealing with examples of the definitions of "tax fraud or the like".

The text follows a series of court cases in the "affaire UBS" - un cas enblématique et problématique que pose l'assistance administrative international en matière fiscale - which was triggered by requests of the International Revenue Service (IRS) to produce and communicate 300 names of taxpayers who were alleged to have committed tax fraud in the United States in the meaning of article 26 of the double taxation treaty between Switzerland and the US.

The decision of the Federal Administrative Tribunal of the 5th March 2009, ("UBS I") among others dealt with the use of offshore structures constituting a violation. The decision led to the surprising and paradoxical result that the Federal Administrative Court called the case moot since the respective identities of the accounts had in the meantime been provided to the US government and IRS by FINMA, the Swiss supervisory authority on banks and insurance companies.

The decision of the Federal Administrative Tribunal from the 5th January 2010 ("UBS II") and a case from the 15th July 2011, of the Swiss Federal Tribunal ("FINMA") dealt with the recourse by FINMA against a decision of the federal administrative tribunal declaring the communicating of the accounts to the IRS as illegal, which was overturned by the Swiss Federal Tribunal.

In connection with the UBS agreement on legal assistance between the Swiss government and the United States, the text deals with the decision of the Federal Administrative Tribunal of 21st January 2010 ("UBS III"), which brought a temporary halt to the putting into operation of the complete "UBS agreement" of August 2009 for a lack of a legal basis for the UBS agreement.

The decision of the Federal Administrative Tribunal of 15th July 2010 ("UBS IV"), again rules on the question of the validity of the "UBS agreement", this time upon the new version of protocol after its ratification by the Swiss parliament.

The text then reports on the decision of the Federal Administrative Tribunal of 21st September2010 ("UBS V"), which dealt with the issue of the validity of the "UBS agreement" in cases in which the persons were not directly concerned by the procedures of legal assistance in cause.

Finally the text deals with the case of the Swiss Federal Administrative Tribunal of the 21st March2011 ("trust discrétionnaire") ("discretionary trust"), in which the beneficiary of a discretionary trust argued not to be covered by the agreement on international legal assistance in connection with a UBS account opened in the name of the trust by the trustee.

Xavier Oberson draws seven lessons of the "affaire UBS". He comes to the conclusion that the question of the legality of the "UBS agreement" is still open in several respects. He argues that the speed of change of Swiss law in connection with international legal assistance in tax matters should not make anyone forget that in the prevailing focus on efficiency the rights of defence of the persons concerned are not enough and are not well protected.

c) Text

You can find a scan (PDF) of the original text here:
A_2.52_OBERSON_Récents deévelopements

["Tax fraud or the like": Considerations and lessons learned on the principle on legality in the law of treaties]

a) Background

The text at hand is situated in the context of the dramatic and internationally coordinated efforts to curb tax evasion that were brought about by the financial crisis of 2008 and have been gathering momentum and political thrust from the G20 and OECD. Approximately twenty five percent of private assets held by individuals in the world are held in Swiss banks. This is fostered by specific policies of the Swiss financial centre and affected by a certain business model in trans-border private banking and a defensive policy and use of the Swiss banking secrecy provisions and the provisions of the double taxation treaties concerning the treaty-based exchange of information.

The text is a critical scientific review and generalization of the UBS case, which led to a potential conflict of jurisdictions between Switzerland and the United States. The text appeared in a special issue of the Zeitschrift für Schweizerisches Recht (Journal of Swiss Law) on a variety of burning issues of the UBS case. The text deals with considerations and lessons learned from the UBS case with a specific focus on the role and the function of the general principle of legality as regards to the UBS agreement, a treaty of mutual legal assistance between the United States and Switzerland providing for and leading to a disclosure by UBS of 4550 identities of accounts based on special criteria set forth in an Annex to the Agreement upon a specific request of legal assistance by the United States.

Thomas Cottier opined on behalf of the Swiss Government together with René Matteotti on the Treaty Request Agreement between the Swiss Confederation and the United States of America of the 19th August 2009 (UBS-agreement). The arguments of the opinion about the principles and their domestic applicability were not upheld by the Federal Administrative Court in January 2010. The UBS agreement had to be hastily renegotiated and pushed through a parliamentary authorization proceeding enabling Switzerland to fulfil its international public law obligations of the UBS agreement within the deadline of 360 days.

The UBS case is an example of a sudden culmination of the international pressures on the slow erosion and breaking up of the business model of the Swiss banks in trans-border private banking and of the defensive upholding of the application of the banking secrecy provisions of Swiss law. The text attempts to clarify the role of the general principle of legality, which has been obfuscated in the dust and the fog of legal and parliamentary crises management in politics and in media under great stress and duress. Thomas Cottier is a full Professor for European and International Economic Public Law at the University of Bern, and is the Director of the World Trade Institute. Cottier has an international academic education at the Universities of Cambridge (United Kingdom) and Michigan at Ann Arbor (United States). He has experience in practice in the function of Deputy Head of the Swiss Office of Intellectual Property and as a negotiator for Switzerland in the GATT and WTO process. As an international scholar he is part of a small group of reading specialists in international economic law in the world.

b) Summary

Cottier summarizes at the end of the text as follows:

"UBS legal assistance treaty between Switzerland and the United States of August 19, 2009 and the civil law enforcement proceeding against UBS of the Internal Revenue Service in a Federal District Court in Miami to produce 55,000 entities of accounts in the Double Taxation Treaty between Switzerland and the United States, expanded the narrow understanding in Switzerland up until now of "tax fraud or the like" excluding from legal assistance behavior of tax evasion qualified as Steuerhinterziehung. The Federal Administrative Court in its fundamental judgment of January 21, 2010, as a result held that the UBS agreement went beyond the framework of double taxation treaties and therefore may not be qualified as so called "consultation agreement" and may not be concluded on the level of the executive or the administration. The decision of the Federal Administrative Court according to Cottier is based upon a concept of the legality principle especially developed in writing on tax law and on a treaty interpretation, which neither is in conformity with international public law nor with constitutional and administrative law. The consequences of the judgment of a necessary renegotiation and a legal insecurity connected therewith and the political costs could have been avoided if the issues at stake had been decided within the framework of accepted theory in international public law and interpreted within constitutional, governmental and administrative law. With regard to the future, the development shows that the existing constitutional framework of allocation of competences in matters of foreign policy are adequate and do not need to be changed."

c) Text

You can find a scan (PDF) of the original text here:
A_2.53_COTTIER_Tax Fraud or the Like

a) Background

The text at hand is a publication of the oral proceedings of the Conference on Neutrality and Morality, and the Holocaust, which took place on the 23rd April 1998 at the American University Washington College of Law. The Conference took place one year after the publication of the Eizenstat I report in anticipation the publication of the documents of the Eizenstat II report. This State Department document (see text Stuart Eizenstat 2.47), addressed among others the dark sides of the behaviour of neutral nations during World War II, of Switzerland in particular. The Holocaust debate brought back the issue of the laws of neutrality, as practised in the past, to the foreground and helped to refocus the discussion on legal and academic aspects as well. All took place at the height of public international criticism of Switzerland, in the United States and elsewhere. Dietrich Schindler junior brought a learned Swiss perspective on the laws of neutrality to the conference. He is an eminent Swiss scholar who had time and again, among others, opined for the Swiss government on key legal issues. His familiarity with the way United States way dealt with issues of international law was obvious since he had been a visiting professor at the Law School of the University of Michigan. Dietrich Schindler junior is the son of an eminent Swiss lawyer, his father Dietrich Schindler senior, who also was a close observer and analyst of Swiss behaviour in World War II, and had opined on behalf of the Swiss government on the gold transactions of the Swiss National Bank. The irony of small circles Dietrich Schindler senior had also a close relationship to the legal world of the United States; he spent among others research stays at Harvard Law School and was a member of the Swiss negotiation team for the Washington Accord of 1946. At the time of the conference Detlev Vagts was present and was a notable speaker – simultaneous presence and writing and speaking on Neutrality by two eminent transatlantic scholars. The inclusion of the concept of Morality in the Dietrich Schindlers text as well as Detlev Vagts opinion on the role of Morality in connection with the behaviour of Neutral Nation is to note. The two attitudes – from two scholars of approximately the same age and from both sides of the Atlantic – though show an interesting difference on the role of the concept of morals as regards to issues of international law or issues to be solved in international conflicts such as the case of the Holocaust. The burning issues raised by the Eizenstat report I (see text 2.47) concerning the behaviour of Switzerland in World War II did not raise issues of the compliance of Switzerland and Swiss Enterprises in international law in the strict sense, it was of great importance under the pressure of the Zeitgeist that the text at hand of Dietrich Schindler injected to the discourse and discussion the concept of morality as a legal concept. The text serves to better understand the legal dimension of the concept of morality at the time of the conference, which was 50 years after World War II.

b) Summary

The text is a detached and mainly legal analysis. It has been published as scholarly article in the American University International Law Review. In part I on Swiss Neutrality Schindler deals with two conditions and characteristics of Swiss Neutrality, Switzerland's geographic situation in general and its internal political structure. Neutrality, according to Schindler, became a shield behind which each Canton in Switzerland as a whole could cultivate its internal way of life without being disturbed by international affairs. All the core values of Swiss political life, such as individual freedom, democratic wealth-government and peaceful coexistence of different religious and linguistic groups, were realised on the basis of a policy of neutrality in foreign affairs. The strong army served to defend these achievements against foreign encroachments, In Schindler's view neutrality coupled with military defence thereby became almost synonymous terms. This understanding of neutrality was particularly strong during the period of Nazi and Communist Totalitarianism. In the section on Swiss Neutrality in World War II Schindler first examines whether moral considerations should have made Switzerland relinquish its neutrality during World War II and join the Allied war efforts. The text discusses the question, whether Switzerland's handling of neutrality calls for serious criticism. Regarding the first point, Schindler explains the difficulties of Switzerland to declare war during the war without being attacked. He also explains why Switzerland still refused to declare war at the end of the hostilities in order to gain admittance to the San Francisco Conference that established the United Nations. This, according to Schindler, would have been considered an act of sheer opportunism, contrary to honour and morality. Switzerland that time was convinced, that its humanitarian and diplomatic services were more helpful to the allies than entering the war. It was also Detlev Vagts, conclusion that during the war Switzerland managed to respect the rules of law of neutrality as codified in Hague Conventions on Neutrality of 1897, with only minor exceptions. The emphasis put on legality gave Swiss neutrality a technical appearance. Legality, in certain cases according to Schindler, served to avoid moral questions. Schindler points out, that a fault of Switzerland was to overestimate neutrality following the end of the war by continuing to consider neutrality as the only policy guaranteeing its independence in the future. Schindler points out that Switzerland's unhappy membership in the League of Nations strongly influenced its behaviour during and after World War II. Switzerland's policy in World War II is now under examination by two commissions that consist of both Swiss and foreign members. The Volcker Commission is examining assets in dormant bank accounts, and the Bergier Commision, is examining the entire historic relationship of Switzerland to Nazi Germany. With regards to Swiss neutrality since World War II Schindler notes that at that time Switzerland was exposed to a type of isolation it had never experienced before. An important factor was the 1946 Washington Accord on German Assets in Switzerland and on Gold as well as the exclusion of neutrals from the San Francisco Conference of 1945. Schindler describes the change of the role of and the reputation of neutral nations during the cold war to the positive. Unexpectedly, however, the Cold War ended the position of neutrals. Switzerland was forced to adapt its neutrality to new circumstances departing from certain longstanding policies of neutrality. Changes in the world, according to Schindler, had enabled Switzerland to act more in solidarity with the international community. A certain cleavage between the government and the people remained. In spite of such restraining forces, neutrality is no longer a condition of Swiss independence and security. Concerning the issue of Neutrality and Morality Schindler closely analyses the developments that have determined the relationship between neutrality and morality as legal concepts in international law in the international community. In the Cold War period of resurrection of neutrality, little attention was paid to morality. After the end of the Cold War, when the world attended a relative high degree of unity, neutrality lost most of its significance while more attention was given to morality. Most important, was the recognition of principles and of international law imposing an obligation on states to observe certain moral standards in all circumstances. These principals have narrowed down the freedom that the old laws of neutrality had left to the neutrals, Schindler states at the end of the text: "Obviously, the rules listed here do not concern neutral states alone. All states have an obligation to act in conformity with the moral standards laid down in international law. All states therefore are called upon to take action if atrocities such as those committed in World War II are committed and to prevent such acts with all the means at their disposal. Problems, such as arms trade, gold transfers, and heirless assets, discussed in recent years with respect to the neutrals of World War II, are no longer problems of neutral states alone. They concern all states and can be resolved only if all states participate in regulating them and observe the respective rules. Such rules, unlike the old law of neutrality, should be applied not only in interstate wars going on between other states, but at all times: and particularly in cases of internal armed conflicts and violations of human rights occurring in other states."

Emerite Professor for International Public Law, European Law and Comparative Constitutional Law at the University of Zurich.

Thürer graduated from University of Zurich Law School (summa cum laude) in 1970. As part of his S.J.D., he studied at Darwin College of the University of Cambridge, England and obtained an LL.M. degree in 1974. He then obtained his S.J.D. (summa cum laude) at the University of Zurich. He was scientific collaborator at the University of Zurich (1975/76) and at the Max-Planck-Institute for international public and foreign and international public law at Heidelberg (Germany) (1976-1979), a visiting scholar at Harvard Law School, Cambridge, Massachusetts (1979-1981). From 1981 to 1983 Daniel Thürer worked as Counsel of the Regierungsrat (Executive) of the Canton of Aargau. In 1983 he became a full Professor at the University of Zurich, where he has been a Co-Director of the Institut for Völkerrecht und ausländisches Verfassungsrecht (Institute for International Public Law and Foreign Constitutional Law) since 1990. Daniel Thürer was a Visiting Research Professor at Harvard Law School (1989), at Stanford Law School (1996), a Distinguished Visiting Professor at the University of Hongkong (2000), a visiting researcher at the European University Institute in Florence, and again visiting Research Professor at Harvard Law School (2002), Visiting Professor at Cambridge University in the Herbert Smith Visiting Program and a Visiting Professor at the "Institutes hautes études internationales", University Panthéon, Assace (Paris II) (2008). He lectured at the Hague Academy for International Law in 2008. He is an emerite since 2010. He received an honorary doctorate (Doktor. h.c. rer. publ.) of the University of St. Gallen in 2001.

He was a judge at the Staatsgerichtshofs des Fürstentums Liechtenstein (Constitutional Court of the Principality of Liechtenstein) (1989-2000). He was a president of the Zurich Lawyer's Association (1989-1991), a co-Editor of the Schweizerische Zeitschrift für Internationales und Europäisches Recht (since 1990) and a co-Editor of the Zeitschrift für Schweizerisches Recht (since 1991).

In 1991 he was elected to the International Committee of the Red Cross, participating in many missions. He is co-Founder and director of the Europa Institute of the University of Zurich, a member of various expert commissions of the Department of Justice such as the Commission for the "Totalrevision der Bundesverfassung", and a member of the "Unabhängige Expertenkommission Schweiz - Zweiter Weltkrieg" ("Bergier-Commission") (2000-2001).

Thürer is a Swiss member of the International Commission of Jurists (1994) and an associated member to the "Institute de droit international" (2009). He is a founding member of the European Society of International Law (2003) and member of the "Board of Editors of the Encyclopedia of Public International Law (2003). Being an elected member of the board of the Deutsche Gesellschaft für Völkerrecht (German Association for International Public Law), he became President of this Association in 2009. Thürer has widely published in the area of international public and European Law; Swiss and administrative and constitutional law as well as on comparative international public law.

Among his more recent major publications are: Kosmopolitisches Staatsrecht - "Grundidee Gerechtigkeit" (2005); "Völkerrecht als Fortschritt und Chance-Grundidee Gerechtigkeit" (2009); "Managing Diversity - Protection of Minorities in International Law" (2009); "Menschrechte - Ideale, Instrumente, Institutionen" (Human Rights - Ideals, Instruments, Institutions), together with Professor Thomas Bergenthal (2009) "International Humanitarian Law: Theory, Practice, Context."; Pocketbooks of the Hague Academy of International Law (2011)

references: http://de.wikipedia.org/wiki/Daniel_Th%C3%BCrer

Lists of publications: http://www.ivr.uzh.ch/institutsmitglieder/thuerer/thuerer/Publikationen.pdf

a) Background

The text at hand is an editorial comment which appeared in the American Journal of International Law in 1997. At the time of publication there was a sudden upsurge in discussions regarding Holocaust cases that brought back unsettled issues of the post-World War II period. In that context the Swiss behaviour during and after World War II under the laws of neutrality caught Detlev Vagts attention: He particularly focuses on a brief review of the international law issues that were relevant to Switzerland's decisions during World War II. He writes in the introduction of the text that his judgment that the behaviour of Switzerland during World War II was compatible with the rules of international law in effect does not dispose of issues of humanity and morality. Vagts' widely read note attempted to explain Swiss behaviour, particularly since the government in Bern was quite legalistic in its approach to the questions of the time and continued to be so.

The text is an effort of historical reconstruction to help understand the influence that the concepts of neutrality, that were part of a framework within states, had on the decisions of the Swiss government from 1939 to 1945. In view of the development that over time the moral standing of neutrals had declined, the function of the law and the policy of neutrality had continuously changed during the wars between Germany and France in 1867 to 1871, between Russia and Japan in 1904 to 1905, in World War I from 1914 to 1918 as well as in World War II from 1939 to 1945. The neutrality of Switzerland had a broader and special basis in international law. Switzerland never was a warlike country involved in repeated combat with its neighbours. It last experienced foreign occupation during the period of French hegemony, when it was known as the Helvetic Republic. The settlement at the Congress of Vienna produced an international declaration of November 20, 1815, that Switzerland should be "permanently neutral". This status implied obligations for both Switzerland and other states. Switzerland was supposed to refrain from un-neutral activities and other states were not to invade the country or interfere with its sovereignty.

Vagts was a speaker at the same conference, Neutrality, Morality, and the Holocaust, as Dietrich Schindler jun (see text), which was held in Washington DC on the 23rd April 1998. in the time between the publication of the Eizenstat I report and the Eizenstat II report. In the meantime he had published another text, Neutrality Law in World War II, Cordoza Law Review, 1998. At the conference he spoke on the subject, The Traditional Legal Concept of Neutrality in a changing Environment.

While the text at hand only tangentially mentioned moral issues involved in behaviour of the Swiss Government and Swiss enterprises during and after World War II the text of Vagts presented at the conference had an important section under the heading Modern "Neutrality" - The moral issues.

His profound knowledge of the specific historic facts and the political dynamics leading to the sudden upsurge of the discussions is also shown in Detlev Vagts, Jens Drolshammer and Peter Murray, Mit Prozessieren den Holocaust bewältigen? Die Rolle des Zivilrechts und Zivilprozesses beim Versuch der Wiedergutmachung internationaler Katastrophen in which he penned the part I Historischer Hintergrund der Diskussion (historic background of the discussion), p. 513 - 517, which openly shows his conviction that only the inclusion of the moral dimension with and beyond the strict legal dimension could lead to a credible and fruitful discussion of the issues suddenly raised 50 years after the end of World War II.

Detlev Vagts was an eminent Professor of Law at Harvard Law School with particular knowledge of Europe, from the history of many of its countries to the various legal and professional cultures of the continent. He was a leading figure of the post-World War II group of internationalists teaching at Harvard Law School. He was a bridge builder, in particular with legal systems and legal cultures in the Atlantic area. He is known for putting the internationalization of the legal professions on the map of globalization of the law. Detlev Vagts has always commented on internationally sensitive and current issues, in particular in his role as the editor and editor in chief of the American Journal of International Law. He always treasured his European background and embedded his teaching and writing in a true comparative tradition. He was a calm and firm voice in matters of international law for many years even in times in the eyes of hurricanes of the Harvard Law School itself.

b) Summary

Because it is essential for a sophisticated overview of Switzerland and Swiss legal culture during and after World War II to have an understanding of the pivotal elements of Switzerlands neutrality in the perception of non-Swiss observers (Drittsicht) and Swiss participants (Selbstsicht) themselves, this summary is more extensive.

In the text Detlev Vagts deals with issues at hand under the title I territorial integrity of a neutral, II trade by neutrals, III neutrals as intermediaries, IV refugee policy and V financial matters. 1) territorial integry of a neutral.

In the passage territorial integrity of a neutral Detlev Vagts notes that Switzerland was not invaded in World War II by either side, but that there were incursions into its airspace by both sides. During the period between the fall of France and the start of the war against the Soviet Union in the summer of 1941, Switzerland lived under the Sword of Damocles of the Third Reich; it became known afterwards that the German general staff had been ordered to prepare a contingency plan for "Operation Tannenbaum", planning the invasion of Switzerland, which after Hitler's focus shifted east became less probable.

During the war, Switzerland was never compelled to allow German armed forces transit rights across the country. Thus, the only German soldiers who were ever transported across Switzerland were 3000 troops so severely wounded that Swiss army doctors concluded that they would be unfit for service for a long time. The Allies also never invaded Switzerland, but they flew over the country on many occasions. The Swiss were rarely able to intercept these flights, often because they lacked night fighters. The Allied flights often crossed Switzerland en route from England to targets in northern Italy. In about ten cases, bombs were dropped on Swiss territory, most seriously in the city of Schaffhausen on April 1, 1944. In addition, the Royal Air Force bombed Basel twice. Many Allied entries into Swiss airspace were by bombers damaged in action over targets in Germany and unable to return home. In the closing months of the war, the Swiss government, according to Detlev Vagts after "considerable soul-searching", decided to permit a substantial deviation from neutral behaviour in the matter of transport of British troops from Italy to Britain for redeployment while war with Germany was still in progress.

2) Trade by neutrals Trade by neutrals with warring parties was permitted under the traditional rules. Detlev Vagts shows that the expressions of indignation in the current writings about Switzerland during the war at the fact that the Swiss traded with the Nazi are ill-founded. The trade not only was legal, but inevitable. The dependency of the Nazi regime on Switzerland and Switzerland on the Nazi regime was reciprocal for the Swiss could not have survived without German supplies. Detlev Vagts shows that two aspects of Swiss trade policy seem vulnerable to criticism as departures from the legal rules on neutrality. First the Swiss government in effect advanced funds to Germany so that it could import Swiss goods. In 1941, under German pressure, Switzerland forbade the export of goods through the mail.

3) Neutrals and intermediaries One of the classic activities of a neutral is the furnishing of offices to the warring parties. Detlev Vagts shows that negotiations did take place in Switzerland for the separate surrender of the German army forces in Italy. The Swiss communications system passed messages back and forth between Japan and the Allies that led to the ceremonies of surrender. Detlev Vagts especially mentions the fact that Switzerland was designated by both Germany and the Western Allies as the Protecting Power under the Geneva Convention of 1929 with respect to prisoners of war. He describes the difficult and later contested work of the International Committee of the Red Cross.

4) Refugee policy Neutrals have a right and at least a moral obligation to provide shelter for those attempting to flee war, persecution and their attendant cruelties. The real blood, according to Detlev Vagts, on Switzerland's honour lies in its treatment of refugees from Nazi horrors. He describes the objectionable Swiss practice persuading the Germans to adopt the practice of stamping the passports of German Jews with a "J". Most dreadful, according to Detlev Vagts, was the turning away of some twenty thousand Jews who were attempting to escape from Nazism in 1942 after the nature of the threat to them from the Holocaust had become apparent, at least to policy-making members of the Swiss Government.

The Swiss President apologized for this action during the proceedings commemorating the fiftieth anniversary of the end of World War II. The enormity of this cruel action quite overshadows the fact that it did not violate international law as it was understood in 1942. The matter became subject to international law only with the adoption of the Protocol Relating to the Status of Refugees in 1967. The Swiss rejection of these terribly endangered persons took place in the context of the country's acceptance of a very substantial number, apparently nearly three hundred thousand, of refugees of various categories from 1933 onward.

5) Financial matters The original focus of the revived interest in Swiss behaviour in the 1940s was the issue of numbered bank accounts maintained in Swiss institutions by persons who had perished in the Holocaust. Detlev Vagts notes that the editorial comment will not consider that subject since it is not a matter of public international law but of actions by private institutions and, incidentally, because the facts are at this point so unclear that it is hard to comment meaningfully on the complex issue.

However, he turns his attention to other areas of financial activities of the Swiss government. During the war, the Swiss government, the Swiss national bank and private institutions entered into dealings with the German Government and German individuals. The origins of the German assets transferred to Switzerland were in some cases, according to Detlev Vagts, of such a shadowy character as to raise questions. The transfer of the monetary gold reserves of the governments and central banks which had come under Nazi control in 1940 has lead to the recent discussions of "looted gold" and Switzerland's behaviour. The practice and its illegality under the rules then in place, however, according to Detlev Vagts, were not clear. As a matter of strict international law, according to Detlev Vagts, the questions were laid to rest by the so-called Washington Accord of 1946, in which the parties involved agreed upon a lump-sum settlement.

6) Conclusion Detlev Vagts comes to the following conclusion: "On the whole, the behaviour of the Swiss Government during the World War II was in compliance with the rules of international law, including the rules of neutrality, as they were then understood. There were lapses in connection with trade and transit, though some of them leaned in favour of the Allies. With respect to the gold transactions, it does appear that there were violations of international law, but that fifty years ago a reasonable and binding settlement of those claims was achieved. A case can be made for the proposition that the trespasses on Switzerland's rights as a neutral that were committed by the warring parties were substantially more serious than the Swiss lapses. When one passes from legal to moral questions, the issues become much more subjective and this Comment cannot deal confidently with them. It is, however, worthwhile to think about Winston Churchill's contemporaneous judgment, that of a statesman who knew how difficult it was to navigate the ship of state in such turbulent waters".

a) Background

The process of Americanization of Swiss law and legal culture after World War II was marked by other conflicts, which go way beyond the series of post war conflicts of jurisdictions like the case study of the UBS-case (see texts 2.50 – 2.53)) In the nineties, fifty years after the end of the war, the United States spearheaded a general international analysis of still unsolved issues in connection with the atrocity of the Holocaust. The United States were devising a complex international action plan to attempt to redress those calamities. This brought Switzerland’s behaviour during and after World War II and the behaviour of some enterprises such as banks and insurance companies to the center of world public attention.

The issues confronted Switzerland and Swiss enterprises with the dark sides of their alleged and actual behaviour, beyond issues of strict legality and involvement,  from long before until after World War II. The sudden upsurge of the Holocaust issues in the nineties caught Switzerland and Swiss enterprises off guard and forced them to participate in the international attempt to search for solutions that were politically, legally and morally acceptable to the world community. This issue faced Switzerland with strong convictions ingrained in American law and lawyers in government which at the outset led to a cultural and legal clash and disconnection. Switzerland and Swiss enterprises had difficulties in dealing with the issue, which only partly and certainly not primarily were marked by issues of law. The United States unexpectedly and forcefully used a mix of historic, political, media and legal instruments as instruments of foreign policy. Switzerland and Swiss enterprises at the outset of the conflict were victims of their legalistic posture, and their inabilities to face the thrust of the overriding moral dimensions (See the assessment in retrospect by historian Thomas Maissen 2.49).

The US effort was personalised and spearheaded by Stuart E. Eizenstat, a powerful and experienced representative of the US government. Eizenstat is a lawyer and a member of the Jewish community who is very experienced in global and particularly European matters. During a decade and a half of public service in three US administrations, Ambassador Eizenstat has held a number of key senior positions, including chief White House domestic policy adviser to President Jimmy Carter (1977-1981); U.S. Ambassador to the European Union, Under Secretary of Commerce for International Trade, Under Secretary of State for Economic, Business and Agricultural Affairs, and Deputy Secretary of the Treasury in the Clinton Administration (1993-2001). During the Clinton Administration, he had a prominent role in the development of key international initiatives, including the negotiations of the Transatlantic Agenda with the European Union (establishing what remains of the framework for the US relationship with the EU); the development of the Transatlantic Business Dialogue (TABD) among European and US CEOs; the negotiation of agreements with the European Union regarding the Helms-Burton Act and the Iran-Libya Sanctions Act; the negotiation of the Japan Port Agreement with the Japanese government; and the negotiation of the Kyoto Protocol on global warming, where he led the US delegation.

Much of the interest in providing belated justice for victims of the Holocaust and other victims of Nazi tyranny during World War II was the result of Stuart Eizenstat’s leadership of the Clinton Administration as Special Representative of the President and Secretary of State on Holocaust-Era Issues.  He successfully negotiated major agreements with among others the Swiss, Germans, Austrians and French,  covering restitution of property, payment for slave and forced labourers, recovery of looted art, bank accounts, and payment of insurance policies.

For this anthology dealing with the Americanization of Swiss law and legal culture we consciously chose the text of ambassador Eizenstat’s – revered and feared – personal Foreword to the extensive preliminary studies with the title “U.S. and Allied Efforts to Recover and Restore Gold and Other Assets Stolen or  Hidden by Germany During World War II”, Prepared by William Z. Slany, The Historian State. This effort was coordinated by Stuart E. Eizenstat in his function as special Representative of the President and the Secretary of State. The report henceforward was called Eizenstat I report.

The text at hand is an official document by the United States with far reaching effects on the conduct of the handling of the contents of the issue. It has been said that the foreword in part is not in conformity with some parts of the report and selectively singles out Switzerland as the main target and topic to be taken on in redressing the calamities of World War II. It is the opening move in a transatlantic quest of high intensity and high determination with the US government leading the late attempt to solve this unfinished business of World War II.

b) Summary

The foreword is a nine pages personal summary and appreciation of Stuart EIzenstat of the report, specific weight being given to certain findings and to specific political intentions of the US government. For the readers and users attention: The overall report, which has 204 pages, consists of a series of documents, the table of contents of which reads as follows: I. Wartime Efforts To Halt Commerce With Germany and Prevent the Flight Abroad of German Assets, II. The Safehaven Program, III. Potsdam Heads of Government Meeting and the Paris Reparations Conference, IV. The Allied-Swiss Negotiations at Washington, March- May 1946 , V. Five-Power Conference on Reparation for Non-Repatriable Victims of Germany, June 1946 , VI. Implementation of the May 1946 Allied-Swiss Accord , VII. Allied Negotiations With the Other Neutral Countries , VIII. U.S. Army Involvement With the Acquisition, Accountability, and Security of German Monetary Gold and Related Assets Following World War II , IX. Disposal by the United States of Captured Gold Looted by Germany From Individual Victims of Nazi Persecution and From European Central Banks , X. The Tripartite Commission for the Restitution of Monetary Gold , XI. Bank for International Settlements , XII. Disposition of Heirless Assets, 1946- 1963

The Forword of Stuart Eizenstat contains a part Introduction, a part Major Conclusions and Policy Implications and a part Challenges For Action.

For the purpose of this summary of a summary we chose a series of citations showing among others the possible strategy and the tactics of the author – vis a vis – the Swiss government and Swiss enterprises.

“This report addresses a vital but relatively neglected dimension of the history of the Second World War and its aftermath, one that became the focus of intense political, diplomatic and media attention over the last year. It is a study of the past with implications for the future.” …

“It is in the context of this mandate that the report catalogues the role of neutral countries, whose acceptance of the stolen gold in exchange for critically important goods and raw materials helped sustain the Nazi regime and prolong its war effort. This role continued, despite several warnings by the Allies, even long past the time when these countries had any legitimate reason to fear German invasion.” …

“Among the neutral countries, Switzerland receives the most attention in the report. We have no desire to single out a country that is a robust democracy, a generous contributor to humanitarian efforts, and a valued partner of the United States today. But Switzerland figures prominently in any history of the fate of Nazi gold and other assets during and after World War II because the Swiss were the principal bankers and financial brokers for the Nazis, handling vast sums of gold and hard currency.”…

“The picture which emerges from these pages, particularly of the neutral nations, is often harsh and unflattering. Many profited handsomely from their economic cooperation with Nazi Germany, while the Allied nations were sacrificing blood and treasure to fight one of the most powerful forces of evil in the annals of history. At the same time, our team knew that if we were going to shine the bright light of history on other nations, we also had to look carefully at America’s role, and the study does so.” …

“Many of the neutrals had a rational fear that their own independence was only a Panzer division away from extinction. But if self-defense and fear were factors in that rationale for neutrality, so too were profit in all neutral countries and outright Nazi sympathy in some. The neutrals ignored repeated Allied entreaties to end their dealings with Nazi Germany. Whatever their motivation, the fact that they pursued vigorous trade with the Third Reich had the clear effect of supporting and prolonging Nazi Germany’s capacity to wage war.” …

“As late as the end of 1944, Secretary of State Stettinius and his State Department colleagues concluded that, on balance, Switzerland’s neutrality had been more a positive than a negative for the Allies during the War. This relatively benign judgment was not shared by other agencies, from the War Department and Treasury Department to the Office of Strategic Services (OSS) and the Justice Department.” …

“Switzerland’s “business as usual” attitude persisted in the post-war negotiations, and it is this period which is most inexplicable. The Swiss team were obdurate negotiators, using legalistic positions to defend their every interest, regardless of the moral issues also at stake. Initially, for instance, they opposed returning any Nazi gold to those from whom it was stolen, and they denied having received any looted gold. The Swiss contended they had purchased it in good faith, that it was part of war booty obtained in accordance with international legal principles by the Third Reich during its victorious campaigns, and that there was no international legal principle which would entitle the Allies to recover and redistribute Nazi assets. Finally, after long, contentious and difficult bargaining, agreement was reached in the form of the 1946 Allied-Swiss Washington Accord.” …

“But the other part of the Accord, the liquidation of hundreds of millions of dollars in German assets, was neither promptly nor ever fully implemented. The Swiss raised one objection after another, arguing over exchange rates, insisting that German debt settlements be included, and demanding that the U.S. unblock assets from German companies seized during the War but which the Bern government claimed were actually Swiss-owned.” …

“Over a six-year period, before the final 1952 settlement, the Swiss government had made only a token 20 million Swiss franc advance ($4.7 million then or $31 million today) for resettlement of stateless victims. Finally, in 1952, after a lengthy and frustrating effort, Switzerland and the Allies agreed to a total payment of only $28 millionOver a six-year period, before the final 1952 settlement, the Swiss government had made only a token 20 million Swiss franc advance ($4.7 million then or $31 million today) for resettlement of stateless victims. Finally, in 1952, after a lengthy and frusttes of around $250 million. …

“It was not until 1962 that Switzerland began to comply with its 1946 side letter agreement to the Washington Accord “to look sympathetically” at using heirless assets for the benefit of Holocaust survivors. After long denying the possession of any heirless assets, some Swiss banks then found over $2 million in bank accounts, most of which was not transferred to Jewish and other relief organizations until the 1970s. In a renewed effort in 1996, they indicated they had located around $32 million in dormant accounts in various banks. Over the years, the inflexibility of the Swiss Bankers’ Association and other Swiss banks made it extremely difficult for surviving family members of Nazi victims to successfully file claims to secure bank records and other assets. This overall pattern of apparent Swiss bankers’ indifference to the needs of the victims of the Holocaust and their heirs persisted until the current international pressures came to bear and, for instance, the appointment of an Ombudsman in 1996.” …

“Fifth, the report also deals with the hotly debated issue of whether some victim gold was sent to Switzerland and other neutral countries, and whether it was also included in the TGC Gold Pool. This was the Pool into which looted central bank gold was placed for redistribution by the TGC to the governments from which it was stolen during the War. This study concludes that both occurred. The Reichsbank or its agents smelted gold taken from concentration camp internees, persecutees and other civilians, and turned it into ingots. There is clear evidence that these ingots were incorporated into Germany’s official gold reserves, along with the gold confiscated from central banks of the countries the Third Reich occupied. Although there is no evidence that Switzerland or other neutral countries knowingly accepted victim gold, the study provides clear evidenceccepted victim gold, the study provides clear evidencepersecutees and other civilians, and turned it into ingots.

And finally on a positive note:
“Among the neutral countries, Switzerland has taken the lead. It has established two separate commissions. Among the neutral countries, Switzerland has taken the lead. It has established two separate commissions establishing an endowment to generate income for survivors and for other humanitarian causes. Private groups, including churches and high school students, have collected over 500,000 Swiss francs (about $350,000) for Holocaust survivors. The United States welcomes and applauds these significant gestures.”

This Forword was considered by some as a wakeup call and by others as a battle cry facing Switzerland and Swiss enterprises with an unexpected and forceful mix of historic, political media and legal instruments of foreign policy deployed by the United States.
This led to a bitter confrontation of Switzerland with American law and legal culture.

c) Text

You can find a scan (PDF) of the original text here:
A_2.47_EIZENSTAT_US and Allied Efforts

a) Background

The text is a report which was published as a note in a Swiss law journal (Zeitschrift für Schweizerisches Recht) on a special seminar held by professors of civil procedure and a public event with the participation of prominent members at the faculty at Harvard Law School. The events were inspired by the encyclopaedic knowledge of the late Detlev Vagts on matters of World War II and transatlantic teaching and research on both sides of the ocean, the direct involvement in Holocaust matters of Jens Drolshammer, then visiting researcher and fellow at the European Law Research Center at Harvard Law School and Peter Murray, a longstanding expert on issues of comparative civil procedure. The event took place at the height of public criticism of Switzerland in particular in New England and in leading academic communities such as Harvard Law School. The events of and the publication are a good example of a transatlantic dialogue even in the contested environments such as Harvard Law School. The events brought together law professors who had various active functions in the Holocaust issue: Arthur Miller was the class action specialist advising professor Bert Newborne, the lead lawyer acting on behalf of claimants in the bank cases, Arthur van Mehren and Detlev Vagts had advised and opined in various class action cases and Alan Dershowitz as a highly visible public individual on numerous occasions had pleaded the cause in public, in particular in the media. Detlev Vagts was an eminent professor of law at Harvard Law School with particular knowledge of Europe, European history of many of the countries and the various legal and professional cultures of Europe. He was a leading figure of the post-World War II group of internationalists teaching at Harvard Law School. He was a bridge builder, in particular with legal systems and legal cultures in the Atlantic area. He is known for putting the internationalization of the legal professions on the map of the analysis of the legal process of globalization. Detlev Vagts has regularly commented on international sensitive and actual issues, in particular in his role as the editor and editor in chief of the American Journal of International Law. He always treasured his European background and embedded his teaching and writing in a true comparative and transatlantic tradition. Detlev Vagts was fluent in German. Peter L. Murray is a Professor Emeritus of Law from Practice at Harvard Law School in Cambridge. He regularly was a Senior Fulbright Professor at the University of Freiburg im Breisgau and a Lecturer of Law at the University of St. Gallen in the Executive Masters of European and International Business Law Program. Murray had originally for many years been in private practice in Maine. He is a specialist in evidence and civil procedure. He is a comparative lawyer particularly known for comparative civil procedure and has an institutional relationship with the University of Freiburg, Germany. He is fluent in German. He was an architect and craftsman of many international endeavors - large and small - in Harvard Law School for many years. Jens Drolshammer is a Professor Emeritus of Law at the University of St. Gallen and a former founding and senior partner of an international commercial law firm in Zurich. He practiced internationally for many years dealing with issues of American law and American legal culture as well. He has co-conceived at the University of St. Gallen a post-graduate masters program in European and international business law. In the past 15 years, he has focused his research activities and writing on the impacts of globalization and americanization on law and in particular on legal professions. He has worked in that context from 1999 to 2008 seven times in fall term as a Swiss visiting research professor at the center of European Law Research at the Law School of Harvard University, developing a new personalistic approach in analyzing the "travels" and the "impacts" of globalization, which lead to the publication of twenty essays in A Timely Turn to the Lawyer? - Globalization and the Americanization of Law and Legal Professions - Essays (2009).

b) Summary

The title Litigating the holocaust?- the role of civil law and civil procedure in attempting to redress international calamities captures the complexity of the issues of the seminar and the contested role of private litigations, in attempting to redress the international catastrophe of World War II in special areas, fifty years after the events. The lead questions dealt with are: Why did it happen? Why are issues of reparation for loss and damages from the international catastrophe of the Holocaust being litigated by means of class actions in American courts? Are class actions in front of American courts the fairest and most efficient way of handling the incomplete and unfinished business relating to the victims of the holocaust? Do settlements and other solutions in these cases bring the victims just compensation and financial benefits? Can the world thereby be convinced that justice is done? At the outset the text deals with the complexity, the novelty and the historic conditions of the strategies of the claimants. Particularly important at the time of the event were the issues of dormant accounts, slave labourers, insurance policies and other related issues, which suddenly and unexpectedly have been taken up by class actions. Under part I historic background of the discussion, the text discusses, based upon an internal memorandum of Detlev Vagts, the historic reasons for the fact that these claims originally had not been addressed in the reparation process immediately after World War II, the reasons for this sudden upsurge of public interest fifty years after World War II, and the issues and the reasons for the American Court system becoming part of the anticipated solution of the remaining claims. Part II focuses on the topic of the efficiency of the American class action system as an instrument, to effectively bring forward claims for compensation in the name of various groups of victims in front of American courts. The text further deals with the question of the basic capabilities of American civil procedure for a comprehensive and final solution to the legal and moral claims for losses and damages of the victims of the Holocaust. The text further discusses the role of government officials and the attempts to influence the results of the settlement negotiations through the use of pressure. The text describes the efforts, which had and still have to be done to redress the losses and damages of the victims of World War II. After discussing the various actual and potential class actions in various areas the text concludes: "The discussion of March 23rd at Harvard Law School, the developments in the meantime have shown how important and enlightened, facts driven and mutual understanding inspiring dialogues among specialists and academicians on both sides of the Atlantic are, which focus on finding the best possible solution of the unsolved problems of redressing losses and damages of victims of World War II. "adversarial strivings both in and outside the courts, by parts with sizable economic interest will take us so far", these issues at hand require the presence of persons who do not have a direct interest in the outcome of the proceedings, who strive for outcomes of proceedings which are fair for everybody involved and concerned and for results, arrived by elementary rules which are observed by everybody. Specialists in history, politics and law have to talk to each other. Only the united effort of all concerned in Germany, Switzerland and other countries of Europe and the United States including the governments, will lead to a satisfactory solution of this human tragedy."

c) Text

You can find a scan (PDF) of the original text here:
A_2.48_VAGTS_Mit Prozessieren Holocaust bewaeltigen

a) Background

The text at hand is a publication of the oral proceedings of the Conference on Neutrality and Morality, and the Holocaust, which took place on the 23rd April 1998 at the American University Washington College of Law. The Conference took place one year after the publication of the Eizenstat I report in anticipation the publication of the documents of the Eizenstat II report. This State Department document (see text Stuart Eizenstat 2.47), addressed among others the dark sides of the behaviour of neutral nations during World War II, of Switzerland in particular. The Holocaust debate brought back the issue of the laws of neutrality, as practised in the past, to the foreground and helped to refocus the discussion on legal and academic aspects as well. All took place at the height of public international criticism of Switzerland, in the United States and elsewhere. Dietrich Schindler junior brought a learned Swiss perspective on the laws of neutrality to the conference. He is an eminent Swiss scholar who had time and again, among others, opined for the Swiss government on key legal issues. His familiarity with the way United States way dealt with issues of international law was obvious since he had been a visiting professor at the Law School of the University of Michigan. Dietrich Schindler junior is the son of an eminent Swiss lawyer, his father Dietrich Schindler senior, who also was a close observer and analyst of Swiss behaviour in World War II, and had opined on behalf of the Swiss government on the gold transactions of the Swiss National Bank. The irony of small circles Dietrich Schindler senior had also a close relationship to the legal world of the United States; he spent among others research stays at Harvard Law School and was a member of the Swiss negotiation team for the Washington Accord of 1946. At the time of the conference Detlev Vagts was present and was a notable speaker – simultaneous presence and writing and speaking on Neutrality by two eminent transatlantic scholars. The inclusion of the concept of Morality in the Dietrich Schindlers text as well as Detlev Vagts opinion on the role of Morality in connection with the behaviour of Neutral Nation is to note. The two attitudes – from two scholars of approximately the same age and from both sides of the Atlantic – though show an interesting difference on the role of the concept of morals as regards to issues of international law or issues to be solved in international conflicts such as the case of the Holocaust. The burning issues raised by the Eizenstat report I (see text 2.47) concerning the behaviour of Switzerland in World War II did not raise issues of the compliance of Switzerland and Swiss Enterprises in international law in the strict sense, it was of great importance under the pressure of the Zeitgeist that the text at hand of Dietrich Schindler injected to the discourse and discussion the concept of morality as a legal concept. The text serves to better understand the legal dimension of the concept of morality at the time of the conference, which was 50 years after World War II.

b) Summary

The text is a detached and mainly legal analysis. It has been published as scholarly article in the American University International Law Review. In part I on Swiss Neutrality Schindler deals with two conditions and characteristics of Swiss Neutrality, Switzerland's geographic situation in general and its internal political structure. Neutrality, according to Schindler, became a shield behind which each Canton in Switzerland as a whole could cultivate its internal way of life without being disturbed by international affairs. All the core values of Swiss political life, such as individual freedom, democratic wealth-government and peaceful coexistence of different religious and linguistic groups, were realised on the basis of a policy of neutrality in foreign affairs. The strong army served to defend these achievements against foreign encroachments, In Schindler's view neutrality coupled with military defence thereby became almost synonymous terms. This understanding of neutrality was particularly strong during the period of Nazi and Communist Totalitarianism. In the section on Swiss Neutrality in World War II Schindler first examines whether moral considerations should have made Switzerland relinquish its neutrality during World War II and join the Allied war efforts. The text discusses the question, whether Switzerland's handling of neutrality calls for serious criticism. Regarding the first point, Schindler explains the difficulties of Switzerland to declare war during the war without being attacked. He also explains why Switzerland still refused to declare war at the end of the hostilities in order to gain admittance to the San Francisco Conference that established the United Nations. This, according to Schindler, would have been considered an act of sheer opportunism, contrary to honour and morality. Switzerland that time was convinced, that its humanitarian and diplomatic services were more helpful to the allies than entering the war. It was also Detlev Vagts, conclusion that during the war Switzerland managed to respect the rules of law of neutrality as codified in Hague Conventions on Neutrality of 1897, with only minor exceptions. The emphasis put on legality gave Swiss neutrality a technical appearance. Legality, in certain cases according to Schindler, served to avoid moral questions. Schindler points out, that a fault of Switzerland was to overestimate neutrality following the end of the war by continuing to consider neutrality as the only policy guaranteeing its independence in the future. Schindler points out that Switzerland's unhappy membership in the League of Nations strongly influenced its behaviour during and after World War II. Switzerland's policy in World War II is now under examination by two commissions that consist of both Swiss and foreign members. The Volcker Commission is examining assets in dormant bank accounts, and the Bergier Commision, is examining the entire historic relationship of Switzerland to Nazi Germany. With regards to Swiss neutrality since World War II Schindler notes that at that time Switzerland was exposed to a type of isolation it had never experienced before. An important factor was the 1946 Washington Accord on German Assets in Switzerland and on Gold as well as the exclusion of neutrals from the San Francisco Conference of 1945. Schindler describes the change of the role of and the reputation of neutral nations during the cold war to the positive. Unexpectedly, however, the Cold War ended the position of neutrals. Switzerland was forced to adapt its neutrality to new circumstances departing from certain longstanding policies of neutrality. Changes in the world, according to Schindler, had enabled Switzerland to act more in solidarity with the international community. A certain cleavage between the government and the people remained. In spite of such restraining forces, neutrality is no longer a condition of Swiss independence and security. Concerning the issue of Neutrality and Morality Schindler closely analyses the developments that have determined the relationship between neutrality and morality as legal concepts in international law in the international community. In the Cold War period of resurrection of neutrality, little attention was paid to morality. After the end of the Cold War, when the world attended a relative high degree of unity, neutrality lost most of its significance while more attention was given to morality. Most important, was the recognition of principles and of international law imposing an obligation on states to observe certain moral standards in all circumstances. These principals have narrowed down the freedom that the old laws of neutrality had left to the neutrals, Schindler states at the end of the text: "Obviously, the rules listed here do not concern neutral states alone. All states have an obligation to act in conformity with the moral standards laid down in international law. All states therefore are called upon to take action if atrocities such as those committed in World War II are committed and to prevent such acts with all the means at their disposal. Problems, such as arms trade, gold transfers, and heirless assets, discussed in recent years with respect to the neutrals of World War II, are no longer problems of neutral states alone. They concern all states and can be resolved only if all states participate in regulating them and observe the respective rules. Such rules, unlike the old law of neutrality, should be applied not only in interstate wars going on between other states, but at all times: and particularly in cases of internal armed conflicts and violations of human rights occurring in other states."

Jens Drolshammer studied Law at the University of Zurich (1964-1968). He studied in the Année d'Etudes Supérieures, University of Geneva, at the Institute for International Affairs of the University of Geneva and the Hague Academy of International Law (1969-1970). He was a Graduate Fellow at the University for Michigan Law School where he obtained a Master's Degree (MCL) (1970-1971) and then worked on his doctoral thesis as a Visiting Scholar at the Law School of Harvard University (1971-1972); he wrote his S.J.D. thesis in antitrust at the University of Zurich (summa cum laude) (1972-1974).

He is admitted to bar of the Canton of Zurich and worked with Homburger Rechtsanwälte as an associate, founding and senior partner from 1975 to 2002. He made substantial contributions to the development of structure, strategy and clientbase of the law firm, one of the leading commercial law firms in Switzerland. He was "Leading lawyer" in antitrust, in Swiss-EU relationship and in corporate governance in Switzerland. 1981 to 2009 he was teaching law at the University of St. Gallen, mainly in the field of American legal culture, comparative law and the planning and structuring of the commercial transactions. From 1995 until 2009 he was a Professor of Law (Titularprofessor) at the University of St. Gallen in Anglo-American Law and the planning and structuring of legal transactions. In addition, he was the president of the Commission (up until January 2003) and founding member and a teacher of the postgraduate studies program "Executive Master of European and International Business Law, M.B.L.-HSG" and teacher in the Master of International Management program and a member of the management committee of the Institute for European and International Commercial Law at the University of St. Gallen until Summer 2010. 1999 and from 2003 to 2009 Drolshammer was a visiting research professor and senior fellow at the European Center for Law Research at Harvard Law School. He worked at the Center for Business and Government at the John F. Kennedy School of Government of Harvard University as well. From 2003 he has carried advisory work through Drolshammer Strategy and Law Advokatur, an interdisciplinary network at the interface of the development of strategy and law for international companies, organizations and leading individuals in business, law and politics.  Jens Drolshammer has regularly published, mainly on Swiss-EU matters, antitrust and commercial law. From 1997 he has gradually specialized and focused on the globalization and americanization of law and legal profession.

His major book publications are: A Timely Turn to the Lawyer? Globalisierung und die Anglo-Amerikanisierung von Recht und Rechtsberufen-Essays (2009); English as the Language of Law, An Essay on the Lingua Franca of a Shrinking World, with Nedim Peter Vogt (2003); Swiss Law Bibliography, English Language Materials on Swiss Law (with Nedim Peter Vogt) (2005); Internationalization of legal education and legal research- an agenda for an interdisciplinary education of international lawyers in the economy and in 2002; The Internationalization of the Practise of Law, (Editor with Michael Pfeifer) and authors (2001).

Drolshammer is militia officer in the Swiss army and has been in the military battalion commander and at the end of his military career a member of the Sachgruppe Strategie, advising the Joint Chef of Staff and the Chief of the army on strategic matters. He has been a member of the International Institute for Strategic studies for more than 25 years.

References: http://www.drolshammer.net/en/6_meta/62.html#

a) Background

The text at hand has been published in honour of the late Professor Raimund Germann, who was a political scientist. With regards to Professor Germann, Thomas Cottier writes in the introduction "We all owe [Raimund Germann] a critical and consistent appraisal of direct democracy and coalition government in Switzerland. Over many years of his fruitful academic life, he had the courage to question the conventional wisdom of the political system as practiced in this country. He developed conceptual ideas, far away from the mainstream in this country, on representation and maturity rules with parties in opposition. He intended to move the Swiss to parliamentary democracy and thus towards the mainstream model in Western Europe, and perhaps throughout the globe. He doubted, whether direct democracy would be able to cope with the challenges of the modern world, with European integration and globalization."

The text reflects a long-standing interest of Thomas Cottier in constitutional law and thus the impact of globalization and regionalization on the structure and functioning of government, in particular on horizontal and vertical separations of powers under the Constitution. It is the first of a series of texts which  introduce the concept of a five story house, by which he depicts a vertical system of allocating powers ranging from local, cantonal, national to regional (European) and global levels. He uses his constitutional law background and his openness and closeness to neighbouring social sciences in describing a bigger picture of the vertical and horizontal paths of mutual influences in the process of globalization on the political and legal system of Switzerland. The text was written at a time, when Switzerland was at pains in finding its way and orientation in the changing landscapes of Europe and the globe. He argues, that changes, both domestically and in foreign relations, require considerable shifts in mainstream attitudes that need to translate in popular vote focusing on a key element of the Swiss governmental system. According to Cottier, resistance to changing paradigms in foreign policy and international integration is not limited to nationalist parties and groups. The loss of boundaries is a cause of considerable angst and anxiety with many fearing a loss of national identity. The feeling reaches far into the mainstream political spectrum and into the respective sciences as well. According to Cottier, it would be fair to say that without direct democracy and with a system of representational majority government, changes within Switzerland would have occurred more rapidly in order to integrate the country into new European landscapes. All of the Swiss down-to-earth pragmatism and impossibility to bring about substantive constitutional changes are characteristic of Switzerland's trials and tribulations in accepting and facing European integration, Americanization, and globalization. According to Cottier, experience shows that changes in the system of government will not occur formally from within given stable and social economic conditions in the countries. They may occur informally and shift the political system towards some of the ideas of the political system more adequate to globalization.

The text is an example of incremental academic working within the underlying, slow, and gradual changes in legal and political culture and constitutional practices. The text focuses on the silent changes, the role of international law on the constitutional structures and the political system, which informally shapes constitutional law more and more, all within the bounds of the written constitution. The text specifically explores the idea to what extent the decline of parliament will eventually shift constitutional practices towards a system of representative government with the Federal Council more directly depending on majorities of the day. According to Cottier, all this depends on the future of the institution of the referendum. He argues that there is little or no room to limit that referendum. He admits that the referendum may lose some of its tradition and importance in the light of recentralization in globalization. Moreover, its role might also change with the introduction of constitutional review over federal statutes.

b) Summary

Under the heading The transformation of law-making, he argues, that as in periods before, political and legal change is less induced from within the country and its utterly stable constellation, but from without i.e. from a changing international context of the constitution. Technological advances, in particular in communications, have profoundly changed business and private lives. Regulatory needs transgress the traditional bounds of the traditional nation states, legal scientists and lawyers alike increasingly draw to facts that law and regulation are being increasingly shaped in international process. The age of comprehensive national codification has come to an end. Most areas of law, today, have an international and European legal dimension. The impact has been of paramount importance in the field of economic law, regulating commerce both domestically and internationally. Particularly in a regional context , these developments are more advanced and intrusive. The developments of the European Union have gone much beyond transboundary non-discrimination and market access. It regulates entire walks of life, such as agriculture or competition, and it increasingly shapes what formerly was national law, both in public and in private law spheres.

Thomas Cottier analyzes the impact of European and international law on the balance of federal powers. The text describes the silent profound impacts on the structure of government and the constitution of the nation state in particular and notes a decline of parliament. The  powers of the people by way of referendum, mandatory or not, states an option which always has been limited to approval or veto power without any bargaining powers. He notes that the threat to use a referendum is of very limited use in the context of international agreements and the evolution of recentralization and globalization of law - many areas lead from losses in bargaining power of parliament to a further shift into the executive branch.

The text floats the idea towards transnational parliamentary states and that joining the European Union would be a major strategy to reestablish the balance of power between elected representation and government. The methods need to focus on a long-term view. With regards to the short term rebalancing of power, the text addresses a number of reforms of government from a practical perspective. Under the heading Long-Term Rebalancing of Power, the text addresses the problem of referendum and raises the question if there is a possibility to reinforce parliament by limiting direct democracy. The text analyzes in detail the virtues of referendum rights and describes the potential practical decline of the referendum.

Thomas Cottier's final and core argument of the text addresses concerns of The Impact of European and International Law on Federalism. International law and international relations do not only affect the balance of powers between the Swiss parliament, the people and the government. It also affects the balance between the Cantons and the Federation, as much between the member states and the European Union.

The text ends with a call for a new concept of constitutionalism addressing the interaction of all layers of government, from local to global levels. The influence of international law on structures of government no longer allows to remain within traditional concepts of constitutionalism. The perception and concepts need to be expanded to the level of regional integration and to global integration. He advocates the metaphor of a multy-story-house, whereby the different floors remain of different importance and impact. Switzerland needs to start looking to all these levels, as different as they are, as a combined system of different polities.

c) Text

You can find a scan (PDF) of the original text here:
G_2.12_COTTIER_Impact from Without

a) Background

The text is a report which was published as a note in a Swiss law journal (Zeitschrift für Schweizerisches Recht) on a special seminar held by professors of civil procedure and a public event with the participation of prominent members at the faculty at Harvard Law School. The events were inspired by the encyclopaedic knowledge of the late Detlev Vagts on matters of World War II and transatlantic teaching and research on both sides of the ocean, the direct involvement in Holocaust matters of Jens Drolshammer, then visiting researcher and fellow at the European Law Research Center at Harvard Law School and Peter Murray, a longstanding expert on issues of comparative civil procedure. The event took place at the height of public criticism of Switzerland in particular in New England and in leading academic communities such as Harvard Law School. The events of and the publication are a good example of a transatlantic dialogue even in the contested environments such as Harvard Law School. The events brought together law professors who had various active functions in the Holocaust issue: Arthur Miller was the class action specialist advising professor Bert Newborne, the lead lawyer acting on behalf of claimants in the bank cases, Arthur van Mehren and Detlev Vagts had advised and opined in various class action cases and Alan Dershowitz as a highly visible public individual on numerous occasions had pleaded the cause in public, in particular in the media. Detlev Vagts was an eminent professor of law at Harvard Law School with particular knowledge of Europe, European history of many of the countries and the various legal and professional cultures of Europe. He was a leading figure of the post-World War II group of internationalists teaching at Harvard Law School. He was a bridge builder, in particular with legal systems and legal cultures in the Atlantic area. He is known for putting the internationalization of the legal professions on the map of the analysis of the legal process of globalization. Detlev Vagts has regularly commented on international sensitive and actual issues, in particular in his role as the editor and editor in chief of the American Journal of International Law. He always treasured his European background and embedded his teaching and writing in a true comparative and transatlantic tradition. Detlev Vagts was fluent in German. Peter L. Murray is a Professor Emeritus of Law from Practice at Harvard Law School in Cambridge. He regularly was a Senior Fulbright Professor at the University of Freiburg im Breisgau and a Lecturer of Law at the University of St. Gallen in the Executive Masters of European and International Business Law Program. Murray had originally for many years been in private practice in Maine. He is a specialist in evidence and civil procedure. He is a comparative lawyer particularly known for comparative civil procedure and has an institutional relationship with the University of Freiburg, Germany. He is fluent in German. He was an architect and craftsman of many international endeavors - large and small - in Harvard Law School for many years. Jens Drolshammer is a Professor Emeritus of Law at the University of St. Gallen and a former founding and senior partner of an international commercial law firm in Zurich. He practiced internationally for many years dealing with issues of American law and American legal culture as well. He has co-conceived at the University of St. Gallen a post-graduate masters program in European and international business law. In the past 15 years, he has focused his research activities and writing on the impacts of globalization and americanization on law and in particular on legal professions. He has worked in that context from 1999 to 2008 seven times in fall term as a Swiss visiting research professor at the center of European Law Research at the Law School of Harvard University, developing a new personalistic approach in analyzing the "travels" and the "impacts" of globalization, which lead to the publication of twenty essays in A Timely Turn to the Lawyer? - Globalization and the Americanization of Law and Legal Professions - Essays (2009).

b) Summary

The title Litigating the holocaust?- the role of civil law and civil procedure in attempting to redress international calamities captures the complexity of the issues of the seminar and the contested role of private litigations, in attempting to redress the international catastrophe of World War II in special areas, fifty years after the events. The lead questions dealt with are: Why did it happen? Why are issues of reparation for loss and damages from the international catastrophe of the Holocaust being litigated by means of class actions in American courts? Are class actions in front of American courts the fairest and most efficient way of handling the incomplete and unfinished business relating to the victims of the holocaust? Do settlements and other solutions in these cases bring the victims just compensation and financial benefits? Can the world thereby be convinced that justice is done? At the outset the text deals with the complexity, the novelty and the historic conditions of the strategies of the claimants. Particularly important at the time of the event were the issues of dormant accounts, slave labourers, insurance policies and other related issues, which suddenly and unexpectedly have been taken up by class actions. Under part I historic background of the discussion, the text discusses, based upon an internal memorandum of Detlev Vagts, the historic reasons for the fact that these claims originally had not been addressed in the reparation process immediately after World War II, the reasons for this sudden upsurge of public interest fifty years after World War II, and the issues and the reasons for the American Court system becoming part of the anticipated solution of the remaining claims. Part II focuses on the topic of the efficiency of the American class action system as an instrument, to effectively bring forward claims for compensation in the name of various groups of victims in front of American courts. The text further deals with the question of the basic capabilities of American civil procedure for a comprehensive and final solution to the legal and moral claims for losses and damages of the victims of the Holocaust. The text further discusses the role of government officials and the attempts to influence the results of the settlement negotiations through the use of pressure. The text describes the efforts, which had and still have to be done to redress the losses and damages of the victims of World War II. After discussing the various actual and potential class actions in various areas the text concludes: "The discussion of March 23rd at Harvard Law School, the developments in the meantime have shown how important and enlightened, facts driven and mutual understanding inspiring dialogues among specialists and academicians on both sides of the Atlantic are, which focus on finding the best possible solution of the unsolved problems of redressing losses and damages of victims of World War II. "adversarial strivings both in and outside the courts, by parts with sizable economic interest will take us so far", these issues at hand require the presence of persons who do not have a direct interest in the outcome of the proceedings, who strive for outcomes of proceedings which are fair for everybody involved and concerned and for results, arrived by elementary rules which are observed by everybody. Specialists in history, politics and law have to talk to each other. Only the united effort of all concerned in Germany, Switzerland and other countries of Europe and the United States including the governments, will lead to a satisfactory solution of this human tragedy."

c) Text

You can find a scan (PDF) of the original text here:
A_2.48_VAGTS_Mit Prozessieren Holocaust bewaeltigen

[the crux of the debates on dormant accounts in Switzerland ]

a) Background

The sudden upsurge of the Holocaust issue strongly promoted by the United States and spearheaded by Stuart Eizenstat, then Under-Secretary of Commerce and Special Envoy of the Department of State, brought Switzerland to the world's attention and led to a highly contested debate in the international public arena. The issue of the Holocaust sailed under the heading of redressing the remaining unresolved injustices of World War II. Controlling was an enlarged concept of morality reaching beyond the traditional concept of law. The conflict was driven by an American concept of law and particularly legal culture. These controversies amounted to the most contested impact on Swiss identity by the United States after World War II. Switzerland was a major target and perceived itself - caught off guard – as a victim by at times destructive accusations that went far beyond issues under the laws of neutrality. After the resolution of the issue of gold transactions in the Washington Accord a sudden upsurge brought to the fore issues such as dormant accounts, insurance policies, slave labourers and looted assets: This led to a long and arduous learning process. The contested international conflict led to the direct involvement of Swiss enterprises such as banks and insurance companies. Switzerland and those actors were squarely faced with the constraints of traditional notions of historians' views on the issue and with traditional mostly legalistic views of the major legal actors in the handling of the issues of law and legal culture. In that context, history and historians played a major role in bringing about a historic change of mind set and an internationally acceptable posture dealing with the issues. Switzerland's policy in World War II came though under thorough examination by two commissions that consisted of both Swiss and foreign members. They were the Volcker Commission, which examined assets in dormant bank accounts and the Bergier Commission, which examined the entire historical relationship of Switzerland to Nazi Germany. These commissions acted with a high degree of transparency and the results of their findings were widely published.

The "case" study at hand focuses in this part of the anthology on the issue of dormant bank accounts in the major Swiss banks, which is only one of the issues of the Holocaust debate. The refusal of the Swiss government to accept responsibility with regards the issue of the Holocaust, which was internationally acceptable, led to a problematic deferral of the responsibilities to the private enterprises themselves.

The breaking out of the issue of dormant accounts had its roots in behaviours of those banks during World War II, in the aftermath of the Washington Accord and in the sixties in domestic affairs. The conflict at hand lead to a "global solution", which retrospectively has been described in an authoritative book by the historian Thomas Maissen in 2004 with the title "memory refused"(Verweigerte Erinnerung).

Maissen was originally a journalist, working for eight years as editor of the Neue Zürcher Zeitung where he was responsible for the “Historical Analysis”. Since 2004, Maissen has been a full Professor of early modern history at Heidelberg University. In 2006, Maissen became a prominent member of national and international historic Commissions. Maissen was one of the key-persons to bring about a changed and more modern view and mind-set to the discipline of history relating to the behaviour of Switzerland and Swiss enterprises during and after World War II. Maissen among others is the author of a widely read history view of Switzerland.

The text is the concluding summary, under the subtitle Worum ging es? (de quoi- s'agissait il?), of the book Memory Refused: Dormant Accounts and the Debate on World War II 1989 to 2004. The list of the major chapters of the book should enlighten the user and help to better situate the final text on the crux of the issue of dormant accounts solved by a global settlement: The introduction I, leading up to the debate II, parameters and frame work of the World War II debate (III), and the chronological description of the negotiations and of the conflict (IV). The book is written for a larger public, it is largely interview-based and profits from the journalistic skills of Maissen. The book and especially the text at hand, breathes an air of restrained shock and indignation. While a strategist usually raises the key question de quoi s'agit-il? before creating a strategy, the historian Thomas Maissen asks the question after the fact: de quoi s-agissait-il?

b) Summary

At the end "the Settlement of the issue of dormant accounts was a global solution" when it should have been the goal of the Swiss government and the Swiss banks at the outset. The Swiss strived to find the "truth" which the course of events showed, cannot objectively be established. This search for "truth" brought Switzerland into a mediatised world tribunal of public opinion, in which it was inferior to its antagonists. According to Maissen, the Holocaust issue was "not only about money" and the amount of money, 1.25 billion dollars, was to a certain extent immaterial as the Swiss perception was that it had surrendered to adversaries, which only were after money, using unjust and offending arguments which led to the high surmounting to an extortion.

The text sheds light on the "historic guilt" of the Swiss financial sector during and after World War II in handling among others the issues of dormant accounts. The real problem according to Maissen was that the Swiss government deferred the issue of handling the conflict to the Swiss banks and refused to act as a responsible actor in the issue of the Holocaust. While the United States gave to Ambassador Stuart Eizenstat a special mandate to deal and negotiate, the Swiss government refused to empower the head of task-force Ambassador Thomas Borer with adequate powers. As a matter of fact, despite the transparent results of the Bergier Commission of historians the Swiss government refused to face the issue by a refusal of memory. Instead the defence of a backward looking concept of "honour" prevented an actual and forward looking posture to come to terms with the necessity of a post-modern search in the replacement of the Westfalian system of states. This self-denial resulted in a series of timid and inadequate actions, which basically were a series of reactions and lead to an international learning process of coming to terms with the Holocaust issue. The text describes the policies of a legalistic approach of the lawyers involved which, were unable and unfit to handle the American concept of law and legal culture, which had gradually established a global reach and become a dynamic and accepted element of societal expectation to changes.

c) Text

You can find a scan (PDF) of the original text here:
A_2.49_MAISSEN_Worum ging es

a) Background

The texts at hand are two chapters of a book by René Schwok entitled Switzerland - European Union, An Impossible Membership, which was published in 2009 in "European Policy", an interdisciplinary series devoted to the study of political systems in a broader sense. While being committed to academic standards, "European Policy" seeks to be accessible to a wide audience. The study by Schwok explains the key elements of the relationship between the Swiss Confederation and the European Union. He begins by summarizing the main steps in this special and evolving relationship which has long oscillated between membership and marginalisation. The text finally and perhaps most importantly explains, why the Swiss still are opposed to joining the European Union. It examines the key questions of identity, reservations on policy matters such as preserving neutrality, direct democracy and Swiss style federalism as well as regarding the economy, which have contributed in shaping public opinion and the official strategy of the Swiss Confederation. It seems to be a paradox that the closer Switzerland gets to the EU through bilateral agreements, the more distant the prospects for joining the EU seems to become. The issue of full membership is the conundrum at the heart of the relationship between the Swiss Confederation and the European Union. It is the only text in the Anthology, which squarely addresses and analyses the issue of full membership.

Professor René Schwok is associated with the European Institute and the Department of Political Science of the University of Geneva. He is also holder of the Jean Monnet Chair in Political Science. René Schwok was born in Geneva and is Swiss. He received his PhD from the Graduate Institute of International Studies in Geneva. He pursued part of his studies at the Institute for European Studies at Harvard University, Cambridge MA.

René Schwok is part of the multifaceted and internationally radiating institutional environment of Geneva, which comprises a series of research institutes and institutions of higher learning. Geneva's, institutional landscape forms an integral part of Swiss Legal Culture, in particular in international matters. Interdisciplinary studies, an early integration of history, economy, law and political science and an early inclusion of a global perspective are the trademarks of this institutional environment.

The lead question in Chapter 9: Why Switzerland refused to join the European Union is Why has Switzerland remained the sole state of continental Europe to refuse membership even though it would have been readily accepted by the EU? Schwok in answering these questions first explores the deep-rooted causes of the mistrust vis-à-vis European Integration that had existed in Switzerland ever since the European Coal and Steel Community (ECSC) was created in 1950.
Schwok identifies, analyses and discusses the Swiss reticence to accession by examining five themes: 1) identity, 2) neutrality, 3) direct democracy, 4) federalism and 5) economic distinctiveness. Schwok includes descriptions of the public perception of the issue and identifies in all the subparts the main difficulties encountered regarding the topics analysed. He describes the influences of political science concepts such as constructivist and realist approaches and identifies relevant economic concepts such as the neo-functionalist and the realist approach. He always identifies the position of the major political forces and squarely addresses the core issues such as: what would Switzerland's EU budget contribution amount to? Would Switzerland switch the Euro instead of the Swiss franc?

In chapter 10: Conclusions: Interesting Paradoxes Schwok uncovers a certain number of interesting points and paradoxes which are ever present in the discussion of the issue of the full accession of Switzerland. These paradoxes are: Switzerland is sometimes more integrated than some EU member states, the bilateral agreements are not original from a legal point of view and the Swiss case defies a number of theories.

b) Summary

The lead question in Chapter 9: Why Switzerland refused to join the European Union is Why has Switzerland remained the sole state of continental Europe to refuse membership even though it would have been readily accepted by the EU? Schwok in answering these questions first explores the deep-rooted causes of the mistrust vis-à-vis European Integration that had existed in Switzerland ever since the European Coal and Steel Community (ECSC) was created in 1950.
Schwok identifies, analyses and discusses the Swiss reticence to accession by examining five themes: 1) identity, 2) neutrality, 3) direct democracy, 4) federalism and 5) economic

distinctiveness. Schwok includes descriptions of the public perception of the issue and identifies in all the subparts the main difficulties encountered regarding the topics analysed. He describes the influences of political science concepts such as constructivist and realist approaches and identifies relevant economic concepts such as the neo-functionalist and the realist approach. He always identifies the position of the major political forces and squarely addresses the core issues such as: what would Switzerland's EU budget contribution amount to? Would Switzerland switch the Euro instead of the Swiss franc?

In chapter 10: Conclusions: Interesting Paradoxes Schwok uncovers a certain number of interesting points and paradoxes which are ever present in the discussion of the issue of the full accession of Switzerland. These paradoxes are: Switzerland is sometimes more integrated than some EU member states, the bilateral agreements are not original from a legal point of view and the Swiss case defies a number of theories.

James H. Hutson received his Ph.D. in History from Yale University in 1964. He has been a member of the History Departments at Yale and William and Mary and, since 1982, has been Chief of the Library's Manuscript Division. Dr Hutson is the author of several books among them: John Adams and the Diplomacy of the American Revolution (1980); winner of the Gilbert Chinard Prize, 1981; To Make All Laws: The Congress of the United States, 1789-1989 (Washington and Boston, 1989-90; 4th edition, Washington, 1990); The Sister Republics: Switzerland and the United States from 1776 to the Present ( Washington, 1991; 4th edition, Washington, 1998); Religion and the Founding of the American Republic (5th printing, Washington, 2000). James Hutson wrote a text on the bombing of Schaffhausen, Switzerland in April 1944 by the American Air Force, which cleared many mysteries about the tragic affair, see chapter Bombing the Sister Republic in Angst - Trauer - Hoffnung, Die Kriegsjahre in Schaffhausen 1939 - 1945, Autoren und Leser der Schaffhauser Nachrichten blicken zurück, Verlag Meier 1955, ed. Andreas Schiendorfer, p. 149 - 171

Source: Library of Congress and personal contact by editor

Paul Widmer was born in 1949. He studied history and philosophy at the University of Zurich and Köln. In 1977 he entered the diplomatic service of the Federal Department of Foreign Affairs and carried out internships in Bern and New York: first with the general consular and then with the permanent observer mission at the United Nations. In 1979 he returned to headquarters, where he was appointed as a diplomatic officer in the Political Affairs Division I. Between mid-1983 and mid-1984, he was seconded to the “Institute for East-West Security Studies” in New York and then acted as an embassy secretary in Washington. In 1989 he returned to Bern, where he was employed as head of the CSCE service in the Political Directorate. From 1992 to 1999 he was the chief of the Berlin branch office of the Swiss embassy in Germany. In 1999 Widmer became Swiss the ambassador to Croatia and in 2003 the Ambassador to the Hashemite Kingdom of Jordan. From 2007 up to October 2011 he was the Ambassador and permanent representative of Switzerland to the Council of Europe in Strasbourg. Since October 2011 Widmer has been in charge of guarding Switzerland's interests by the Holy See in Rome.

Widmer has written a number of historical and political books - for example, "Die Schweizer Gesandschaft in Berlin" (1997); "Schweizer Aussenpolitik und Diplomatioe" (2003);"Kroatien im Umbruch" (2004); Der Einfluss der Schweiz auf die amerikanische Verfassung von 1787, in Schweizerische Zeitschrift für Geschichte, (1988).
References:

https://www.nzz-libro.ch/index.php/contributor/view/detail/id/204/

Although the plaintiff is typically the master of her complaint, removal allows a defendant to transfer an action that has been brought against her in state court to federal court.

History and Justifications

Although not specifically authorized by Article III, removal has been recognized since the Judiciary Act of 1789.  Various justifications for this practice have emerged, including that it “provides a significant counterbalance” to the plaintiff's ability to choose the forum, Debra Lyn Bassett & Rex R. Perschbacher, The Roots of Removal, 77 Brook. L. Rev. 1, 3 (2011), and “protect[s] non-resident litigants from local prejudice.”  Grassi v. Ciba-Geigy, Ltd., 894 F.2d 181, 185 (5th Cir. 1990).

General Rules (§ 1441)

Jurisdiction.  Removal is a one-way street: actions may only be transferred from state court to federal court.  Furthermore, a defendant can remove a case only if it originally could have been filed in federal court (i.e., the court must have subject-matter jurisdiction).  Unlike an action that was originally filed in federal court, if § 1332 (diversity) is the only basis for federal jurisdiction, complete diversity is required.  In other words, no defendant can be a citizen of the state in which the action was brought.  Under § 1441(f), a defendant may remove a case even if the state court did not have jurisdiction to begin with.  Otherwise, the typical jurisdictional requirement apply.

Parties.  Only an original defendant may initiate removal.  For example, a plaintiff may not remove an action on the basis of counterclaims brought by the original defendant.  See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107–09 (1941).  The Supreme Court has not yet considered removal by third-party defendants, but the circuit courts generally agree that they cannot initiate removal.  In a case with multiple defendants, all of them must join the removal petition, see Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 393 (1998) (Kennedy, J., concurring), with two exceptions.  First, nominal parties need not consent to removal.  See, e.g., Thorn v. Amalgamated Transit Union, 305 F.3d 826, 833 (8th Cir. 2002).  Second, when a case involves both federal question claims and claims that fall outside the original or supplemental jurisdiction of the federal courts, § 1441(c) instructs the district court to remand the latter claims to state court.  In such a situation, only the defendants facing the federal question claims need to consent to removal.

Venue.  Defendants must remove cases to the district court that governs the geographical region of the state court where the action was originally filed.  This displaces the normal venue rule, meaning that actions are sometimes removed to districts in which venue would not originally have been proper.

Procedure for Removal (§ 1446)

Mechanics.  To remove a case, a defendant must file a notice of removal in the district court, signed pursuant to Rule 11, that includes a statement of the grounds for removal and a copy of all process, pleadings, and orders served upon the defendant in state court.  The defendant must also provide written notice to adverse parties and the clerk of the state court.  No further proceedings may take place in in state court unless and until the case is remanded.  Once in federal court, the proceedings continue based on what has already happened in state court.

Timing.  Generally, a defendant must remove the case within 30 days of receiving the initial pleading or the summons, whichever is earlier.  Exception: If the case was not originally removable, but becomes removable (e.g., because of an amended pleading), the defendant has 30 days from whenever the case became removable.  Exception to the exception:  For diversity cases, there is an absolute one-year limit on removal from the date on which the action was commenced.

Objections to Removal (§ 1447)

Parties have 30 days to object to removal, unless the objection concerns subject-matter jurisdiction, which may be challenged at any time.  If it turns out that removal was improper, the case is simply remanded to the state court.

Specific Statutes and Nonremovability

In addition to § 1441, the general removal provision, a number of statutes cover removal of particular types of cases, including § 1442 (suits against federal agencies or officers), § 1443 (civil rights cases), § 1453 (class actions).  On the other hand, in § 1445 Congress has listed particular claims not subject to removal.

Stefan Trechsel was born in Bern in 1937. His father was the pastor of Boltigen im Simmental and his mother came from a Jewish family in Berlin. He attended school in Burgdorf and continued his studies in Bern. He passed the bar exam in 1963, went on to receive his doctorate in 1966 and took up the position as a private lecturer in 1972. Trechsel spent one year as a fellow in Washington, D.C. He was a state prosecutor in Bern from 1971 to 1975. Throughout he career he has taught at the Universities of Fribourg, Bern and Zurich as well as holding the position of Professor for Criminal Law and Criminal Procedure first at the University of St. Gallen from 1979 to 1999 and from 1999 to 2004 at the University of Zurich. In 2006 Trechsel assumed new functions as a judge at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague from which he retired in 2013.  While he works as an academic in penal law, his practical experience has mainly been in international human rights protection.

In 1975 Trechsel was elected member of the European Human Rights Commission of which he was President from 1995 to 1999. Trechsel is a member of various scientific bodies including the Steering Committee of the International Criminal Law Society and served for 12 years on the Board of Trustees and Advisory Board of the Max Planck Institute for Foreign and International Criminal Law and Criminology. He has participated in expert committees of the Confederation and the cantons of Zurich and St. Gallen for legislation in the areas of criminal law, criminal procedure and immigration law.

This biography has been translated and adapted from: http://www.rwi.uzh.ch/lehreforschung/alphabetisch/trechsel/person.html last accessed 14 May 2014.

Peter von Matt is an Emerite Professor of German literature at the University of Zurich. From 1957 to 1964 he studied German, anglistics and the history of art in Zurich. After graduation he worked as a teacher in the Gymnasium in Lucerne up until 1967. During this time he worked on his doctorate thesis on E.T.A Hoffmann and obtained his doctoral degree in 1970. From 1976 to 2002, he was a professor in new German literature at the University of Zurich. In 1980 von Matt was a visiting professor at the Stanford University in California. In the years 1992 and 1993, von Matt was a "Fellow am Wissenschaftskolleg zu Berlin."

Von Matt is a member of the (Orden) "Pour le Mérite für Wissenschaften und Künste", of the "Deutsche Akademie für Sprache und Dichtung", of the "Akademie der Wissenschaften Berlin", of the „Sächsichen Akademie der Künste" and the „Akademie der Künste Berlin". From 1989 to 1991, he was a member of the jury of the "Ingeborg-Bachmann-Award" in Klagenfurt. Von Matt has obtained the following awards: Johann-Heinrich-Merck-award for literary criticism and essays (1991); Johann-Peter-Hebel-award (1994); "Innerschweizer Kulturpreis" (1995); "Pour le mérite für Wissenschaften und Künste (1996); Award for Frankfurt's anthology (1998); Art award of Zurich (2000); „Friedrich-Märker-Preis für Essayisten" (2001); „Prix Européen de l'Essai Charles Veillon" (2002); German language award (2004); „Heinrich-Mann-Preis" (2006); „Brüder-Grimm-Preis der Philipps-Universität Marburg" (2007); „Jahrespreis der Stiftung für Abendländische Ethik und Kultur" (2011).

Von Matt regularly writes articles for the Frankfurter Anthology.  His major publications include: Die tintenblauen Eidgenossen. Über die literarische und politische Schweiz (München 2001); Öffentliche Verehrung der Luftgeister (München 2003); Die Intrige, Theorie und Praxis der Hinterlist (München 2006); Der Entflammte, Über Elias Canetti (Zürich 2007); Wörterleuchten, kleine Deutungen deutscher Gedichte (München 2011); Das Kalb vor der Gotthardpost, Zur Literatut und Politik der Schweiz (München 2012).

References: http://www.ds.uzh.ch/Institut/Mitarbeitende/index.php?detail=88&get=cv; http://lexikon.a-d-s.ch/edit/detail_a.php?id_autor=1165; Weblinks: http://www.portal.dnb.de/opac.htm?query=Woe%3D115817905&method=simpleSearch

a) Background

The text at hand is an essay in the form of a short book. It contains an extensive bibliography for further references. In the introduction the authors state that for years there has been an intriguing tendency in many aspects of today's worldwide legal profession towards an ever-increasing Anglo-Saxon influence as well as a growing trend of Americanization. This is of course particularly the case concerning European legal professionals and academics. However, it is not just this un-European process of "Anglification", but also the growing American dominance and pre-eminence of the Anglo-American culture that lawyers in the international practice of law have to deal with, exposed as they are to the challenges of these new realities and the internationalization of the practice of law in their day-to-day professional lives.

The function of professional legal English has fundamentally changed in recent years: English has become the legal field's lingua franca. This new reality has not only had a great impact on all legal professionals within a particular jurisdiction but also on the jurisdiction of its legal system itself. Very little is known about the "travels" and the mechanics and the wide impact of these new realities, particularly if one considers its enormous significance. In a changing world, there will be a need for new awareness and new strategies in the area of legal education, legal research, legal scholarship and the international legal professions. The ever-growing importance of the English language increasingly affects our society. This of course must also be seen in the context of many initiatives to deal with the larger issues of the function of the English language in our society, our daily life and the education of our children - English being presently the strongest network of the "brave new world" of Americanization as well as of Globalization.

The authors make the following suggestions and proposals for the multidimensional task of coping with the new realities of legal English. The authors favour an issue-driven and topical approach. The authors do not claim to have embarked on an academic adventure in the traditional sense. Many of the statements are based on observations and experiences, not on survey and research. The essay is meant to serve as a quarry to provide building blocks, gravel and sand for further discourse or analysis. It is inspired by the following working hypothesis: Law follows language and language often carries the law: Now is the age of Anglo-American Law and of English as the language of law.

Jens Drolshammer is an emeritus Professor of Law at the University of St. Gallen and a former founding and senior partner of an international commercial law firm in Zurich. He practiced internationally for many years dealing with issues of American law and legal culture. He has co-created at the University of St. Gallen a post-graduate masters program in European and international business law. In the past 15 years, he has focused his research activities and writing on the effects of globalization and americanization on law and - in particular - on legal professions. He has worked in that context from 1999 to 2008 seven times in the fall term as a Swiss visiting research professor at the Center for European Law Research at Harvard Law School, developing a new personalistic approach in analyzing effects of globalization, which lead to the publication of twenty essays in A Timely Turn to the Lawyer? - Globalization and the Americanization of Law and Legal Professions - Essays (2009).

Nedim Vogt has been a senior partner of a large commercial law firm in Zurich until 2010. He has an international education: he studied at Harvard Law School and worked for two years as a lawyer in a law firm in New York. He has been a well-known teacher of law at the University of Zurich from 1989 to 2011. He is the author, co-author and editor of numerous books and articles on trusts and inheritance law as well as on contracts and civil procedure. He is also the co-editor of a new series of commentaries on Swiss law.

Vogt and Drolshammer have been professional and personal friends for many years. They have embarked on several projects on the internationalization of the legal profession as well as on the role of language in law and on legal professions in general such as Swiss Law Bibliography, English Language Materials on Swiss Law (2005) and the text at hand, English as the Language of Law, an Essay on the Lingua Franca of a Shrinking World (2003). This essay was volume one of a once-planned series called Transatlantica - culture, language and law in a Transatlantic Context. This project, despite its prominent international advisory board for commercial reasons, did not succeed. 

b) Summary

The text situates the issue in the Internationalization of Practice of Law as an example and highlights the importance of English as a legal language. The text analyses the current use of the English legal language by the legal professions. It particularly highlights the international impact of Swiss law as well. It describes the relevance of legal English for Switzerland as a reality for the legal professions and identifies "potentials" and "constraints" of the use of English as a legal language in Switzerland. The text postulates elements of a strategy to deal with English as a language of law in general as well as the particular needs for a strategy in the area of legal education and legal research, legal professions and legal professional associations. The text then turns to further challenges in an age of globalization behind the lines, in view of the under researched issues of law of the interdependence and interlinking of the dimension of law and the dimension of communication in a globalised legal world in the information age.

The text deals with issues such as: Defending Europe: The Necessity of Communication in English, which states that it will become increasingly important for non-English speakers and for non-Anglo-Saxon jurisdictions to be able to communicate their own values and concepts of legal systems, professions and education in English in order to make themselves heard and understood by the English-speaking community. The form of international oriented self-defence or self-assurance will be an important and considerable challenge in the near future. The text ends with a call for further action from a trans-Atlantic perspective.

The book cites a quotation of George Steiner from his seminal essay: "After Babel, Aspects of Language and Translation" at the very end, which strikes yet a more subtle chord: "Both in 1975 and 1992, I sought to conjecture as to the polyglot future in the face of the global detergence by an Anglo-American Esperanto, itself splitting into more local though cognate forms. Thus one is tempted to suppose that the triumphalism of science, of technocracy, of international finance and the mass-market media will assure the long-term hegemony of Anglo-American (computer languages reflect and enforce this prepotence). Reality, however, is always subtler and more ironic than our suppositions. It may well be that the Tower of Babel will continue to cast its creative shadow."

c) Text

You can find a scan (PDF) of the original text here:
A_2.54_DROLSHAMMER_English as the Language of Law

a) Background

Law in the United States, is a description of the basic elements of the American legal system designed mainly for students with a civil law background. The focus is on those attributes of American law that are believed to be unfamiliar to jurisdictions from other legal traditions such as American common law, the federal structure of the US legal system and the American constitutional tradition. The use of comparative law technique permits us to study the American legal system in comparison with legal systems with which they are already familiar. The chapters in the second edition also cover topics such as American civil justice, criminal law, industrial property, choice of law and international jurisdiction, the American legal profession and the influence of American law on the global legal order. The text at hand - an excerpt - is the final chapter of the small book. It is a non-Swiss perspective on the international role and positioning of the American legal system in the world today. It is one of the rare texts written by non-Swiss lawyers in this collection.

Arthur van Mehren was a world-renowned scholar in international and comparative law, whose work influenced generations of lawyers around the globe. He was a towering figure in American law school teaching and in American legal research. He was fluent in several languages, taught in many countries and written ten books along with hundreds of articles on various aspects of comparative, international law, including conflicts of law and jurisdiction. He was a true bridge builder in trans-Atlantic legal matters after World War II. He had a large international network of colleagues and students who revered him as an older statesman, colleague and friend.

Peter L. Murray is an emeritus (2010) Professor of Law from Practice at Harvard Law School in Cambridge. He regularly was a Senior Fulbright Professor at the University of Freiburg in Breisgau and a Lecturer of Law at the University of St. Gallen in the Executive Masters of European and International Business Law Program. Murray had originally for many years been in private practice in Maine. He is a specialist in evidence and civil procedure. He is a comparative lawyer particularly known for comparative civil procedure and has an institutional relationship with the University of Freiburg, Germany. He is fluent in German. He was an architect and craftsman of many international endeavors - small and tall - in Harvard Law School for many years.

Van Mehren and Murray became close friends in the later part of their careers at Harvard Law School. When van Mehren became frail, he often co-taught courses with Murray. It therefore is a sign of respect and personal friendship that when this short introductory book on law in the United States was to appear in a second edition, Murray became its co-author. The book originally was called Law in the United States, a general and comparative review. It grew out of lectures that van Mehren gave in the fall of 1983 and the spring of 1984 at the University of Ghent.

Both authors have a special relationship to Swiss law, law schools and legal scholars. Van Mehren after World War II during his three years study of civil law systems was a young assistant professor of law - at the request of Roscoe Pound, the dean of Harvard Law School - in Paris, Berlin and in Zurich. Murray has often taught at the University of St. Gallen. Both of them have many friends and alumnis in Switzerland, when they have been teaching in various functions throughout their careers.

b) Summary

Characterization and structure of the book Because it is essential for a sophisticated observer of the role of the United States after World War II to be able to change and take note of other perspectives of the influence of American law on the legal process of Globalization, this summary is more extensive, commensurate with the purpose of this part of the collection on the Americanization of Swiss law and legal culture.

The text at hand, which is the final chapter of the second edition of Law in the United States by Arthur van Mehren and Peter Murray, was published in 2007. The excerpt is chapter eleven entitled The United States and the global legal Community. The text is written from an American perspective and is divided as follows: The American legal system in the world context; American Private Law in the Modern World; American Litigation Abroad; American public law and the modern democratic world; America and the World Language of Law; American legal culture on the world scene; () America and world public law and America and the legal world of the future. We take the liberty to paraphrase the views of the authors, which is important for the better understanding of this part of the collection on Americanization.

Little attention to American law at 1950 times Van Mehren and Murray state that unlike Roman law, which exerted influence over the world's legal system for nearly a millennium, or even English, French or German law, which spread to much of the then-civilized world during the 19th and earlier 20th century, American law and legal institutions were not given much attention by other countries until the middle of the 20th century. This was largely because (1) in contrast to the major European Powers, America did not found many colonies abroad; (2) America's early economic activity was focused on developing its own vast territory; (3) American Law was not in a forum that encouraged exports and emulation; and (4) the international language of discussion and exchange was French and in scientific matters German and America's language was widely spoken only within the Empire of its motherland and cultural competitor Great Britain. American law has traditionally not been susceptible to easy export and emulation abroad in particular because of its uncodified common law form as well as the peculiar and extreme form of American federalism. These preconditions changed at the end of World War II. The political and economic strength of the United States following the war and continuing throughout the latter part of the 20th century have led to the export of American public and private law in several forms.

Areas of influences of American law after 1950 The modern roots of European constitutionalism were clearly found in the American theory of government. Many areas of influence in the post-World War II period were indirect. On the other hand, van Mehren and Murray argue that in important areas of present key law making and law practice, the American influence is profound and ongoing. In the area of American private law in the modern world it is not any concerted governmental activity on either side of the Atlantic or Pacific that counts for the current worldwide influence of American law and legal institutions. It is the result of private negotiations, in which American law is chosen to govern major transactions; the role of international financial institutions, founded in part by the United States, that condition financing participation on American-style legal arrangements; and a more diffuse but no less effective transmission, via educational and cultural means. Private law began to become relevant in London, Frankfurt and Paris in particular because of increasing internationalisation of major American enterprises. The export of the American private law to protect American economic legal actors has been intertwined by a form of law export that is connected with the kinds of economic and financial transactions themselves. The vehicles for the dissemination of the American legal doctrine and the activity of certain international financing organisations are particularly the International Monetary Fund (IMF) and the World Bank. A similar form of law export has been connected with the activities of the World Trade Organization (WTO). Other areas of influences: civilization, constitutionalism and democracy, public law, language and international law.

Another area in which American law has made itself felt abroad, sometimes according to the authors to an inordinate extent, is the field of civilization. The expansiveness of American concepts of international jurisdiction has brought peculiar features of American tort law to the doorsteps of the rest of the world. A welcoming expansiveness of American civil jurisdiction is prevented by American choice of law requiring that sometimes, American legal norms should be applied to circumstances that seem much more closely related to the legal and social priorities of another jurisdiction.

The aspects of American democracy and its public legal order have been admired since the claims of Tocqueville. According to van Mehren and Murray, some of them, such as the written constitution and the notion of traditional elaboration of that constitution, have served as models for several developments worldwide. Again American constitutionalism and much of American public law do not lend themselves to easy adoption. Themes of public law have found widespread resistance abroad with the exceptions such as the concept of judicial review and, at times, the institution of jury trial. In those areas where American public law has developed to manage and govern the modern economy, there has been a degree of influence based upon the actual merits of the solutions reached. The influence of American law and legal institutions throughout the world has been furthered by the general acceptance of English as the world language. In recent years, English has also become the world language of law. The universal knowledge and the use of the English language - particularly in connection with the world wide web - makes American law and legal culture immediately accessible to practically anyone in the world who has a good secondary education. The lack of theoretical structures of American law makes it, according to the authors, more accessible to persons not imbued with the English language from birth.

The influence of American law is closely related to the spread of American popular and general culture throughout the world. In the foreground with respect to law is the American media culture. This phenomenon of popular culture is complemented by the intense interest of foreign lawyers in exposure to American legal education.

The outward orientation according to van Mehren and Murray with respect to its own institutions and rules of private law is not matched by a corresponding receptiveness to international law and supranational regiments governing all nations of the globe, including the United States. The United States has historically been somewhat reluctant to embrace international treaties and alliances. World War II brought the United States out of its traditional isolation. The engagement with international law and legal institutions began to diminish after the disastrous experience in Vietnam. It cannot be denied that America's recent actions have tended to undermine the influence of American institutions of public law in the world at large. The preconditions pose an interesting dichotomy over the second half of the 20th century: American influence on private law and legal culture, and to a lesser extent international public law, has been profound and is ongoing, but at the same time, American engagement in international law and legal institutions is now seen as rather negative and in disrepute.

The role of American power in the future - the role of civil process With respect to the influence of America and the legal world in general some predictions pretend that the influence of private law is based on economic power. It is likely – this is the argument of the authors van Mehren and Murray - that American law will continue to be exported in the area of private law. It is difficult to imagine that the United States will maintain the degree of influence exercised over the last fifty years as a source of national public law. On the other hand American laws will continue to be promoted by the use of English as an international language. American civil litigation will only come reluctantly in line with the rest of the world. The approach, a unified world economy with differences among the civil justice systems, that serves that economy will tend to finish. Finally according to van Mehren and Murray it seems clear that American exceptionalism vis-à-vis international public law is a finite phenomenon. It is hoped that the decline of America's comparative economic and political power will occur in such a manner as to preserve international order and spare current and future generations of American citizens the consequences of violence. It is also hoped that lasting influences of the pre-eminence of economic, legal, and cultural institutions resist and enrich the world long after the political and economic power that originally protected them has waned.

[Parliamentary interpellation by a member of the house of representatives requesting a judgement of the Federal Council on alleged contents of racism in Louis Agassiz publications and requesting the renaming of the mountain peak Piz Agassiz to "Rentyhorn", Renty being a slave of which Louis Agassiz allegedly used a photograph as a "scientific proof" on the inferiority of the "black race"]

a) Background

We use Louis Agassiz – "the creator of American Science" – as a Swiss emigrée whose natural science based ideas on a theory of races had travelled into neighbouring sciences and influenced the discussions in legal science on the issue of slavery in the United States as a starting point to briefly focus on the  cultural encounters between Switzerland and the United States as regards to the issues of slavery. In Switzerland - "the Swiss get up early but wake up late" – only after the turn of the millennium science as well as in politics and public opinion was made aware in public as part of public opinion, of the nature and the extent of the involvement of Switzerland, certain cantons, certain cities and in particular certain individuals and companies in the issue of slavery in the United States. In the Anthology we do not take a stand and do not pass a judgement. It is a fact, that after the issues relating to matters of Apartheid in the relationship between Switzerland and South Africa and after the issues relating World War II in the so called Holocaust debate, slavery in a broader sense and in particular with respect to the Swiss involvement in slavery to the United State became an issue in Switzerland as well. Research and publications as well as political interpellations of the Federal Council brought to light, that in a typology of participation in the "traite noirs" Switzerland or Swiss were substantially involved in financing activities, part of trades, substantially -in slave trade, in financial transactions connected therewith, in transactions involving American sourced cotton, in owning and operating farms in the United States and in the respective trading activities in the triangle Europe-Africa-United States. These activities were not limited to the United States. (See Bernard Bailyn, Atlantic History, Concepts and Contours, Harvard University Press, 2005, partly relating to Louis Agassiz's Theory of races).

The political initiatives in the Swiss parliament were partly driven by the activist publication of Hans Fessler, Reise in Schwarzweiss, Schweizer Ortstermine in Sachen Sklaverei, Zürich 2005 and reports on the results of new historic studies by Thomas David, Bouda Etemad, Yannick Marina Schauffenbühl, at the university of Lausanne, with the title "La Suisse et l'esclavage de noirs" (the Swiss and slavery of blacks) Lausanne, 2005. Both books were reviewed in press such as in "Neue Zürcher Zeitung", (February 4th/5th 2006), and "Tagesanzeiger", (June 12, 2006). The activities and reactions on the national and international scene by the Swiss government will briefly be highlighted below. It has to be noted that the text of James H. Hutson, Swiss and the American Civil War (2.12) and Heinz K. Meier, the Period of the Civil War (2.13) deal with these new issues at hand.

Louis Agassiz, Swiss emigrée and a towering figure of 19th century natural science in the United States, two hundred years after his birth in Switzerland, played a role in this recent Swiss public discussions and activities in the Swiss parliament. As described in his biography and in the editors note on the background of text 2.21 on Stephen Jay Gould scientific analysis of Louis Agassiztheory on races. Agassiz was a Swiss emigrée already successful in science, in particular in paleontology and geography before his arrival in the United States. He became there a towering figure in natural science and a leading institution builder at Harvard University. After Agassiz came to the United States, he also became a prolific writer in what has been later termed the genre of scientific racism. Agassiz was a believer and advocate in polygenysm, that races came from separate origins (specifically separate creations) were endowed with unequal attributes and could be classified into specific races the same way he felt other animals and plants were classified. The respective theories were elaborated before the publicification of Darwins major work on evolution.

For the puropose of this Anthology we use Stephen Jay Gould's analysis of Louis Agassiz theory of races in his revised and expanded version of his story in the Mismeasure of Man. In order to show how scientific theories travelled in the United States into neighbouring social sciences such as anthropology and later into legal science we revert to Lee D. Baker's book From Savage to Negro, anthropology and the construction of race, 1896 - 1904, University of California Press, 1998, Lee D. Baker explores what racial categories mean to the American public and how these meanings are reinforced by anthropplogy, popular culture and the law. Focusing on the period between two landmark Supreme Court decisions Plessy vs Ferguson (the "separate but equal" doctrine, established in 1986) and Brown vs. Board of Education, (the public school desegregation decision of 1854) - Lee D. Baker illuminates the ways in which social scientists have responded to and have shaped the politics of races in the United States. He paints a vivid picture of the relationships between African-American and White scholars, and documents interracial efforts to use the social sciences as a means of fighting for racial equality. In chapter one, History and Theory of racialized World view he writes a brief history of the formation of these ideas and describes in the subpart the "American School" of anthrology. As regards to Louis Agassiz, Lee Baker states as follows: "The American School of Anthropology":

"The so-called American school of anthropology was developed in the midst of the political, financial and ideological unrest that led to the Civil War. Until the mid-ninetheenth century most scientists explained racial inferiority in terms of the "savages" fall from grace or of their position in the "Great Chain of Being". The idea of monogenesis - that Negroes were fully human - was integral to both paradigms. U.S. scientists, however, revived earlier ideas of polygenesis - multiple origins of the human species - in the wake of the growing antislavery forces and slave revolts. The proponents of these arguments eclipsed the single-origin thesis prior to and following the Civil War, even after Charles Darwin's On the Origin of Species by Means of Natural Selection (1859) should have abated them. The first American anthropologists advanced the polygenesis thesis within the highly politicized antebellum period, and these efforts were aimed at setting Negroes apart from Whites and defining the Negro's place in nature. The most influential scholars of the school were Samuel Morton, Josiah Nott, and Louis Agassiz. ..."

" The third and most prominent contributor to this American school of anthropology was the Harvard naturalist Louis Agassiz. Agassiz hailed from Switzerland and was an expert in paleontological ichthyology. In 1846 he was invited to join the faculty of Harvard University, where he developed an interest in the origins of the human species. Initially he advanced the single-origin or monogenesis approach. After four years in the racially charged antebellum climate, however, he underwent a conversion that led him to believe Negroes were a separate species altogether. Two important events led to this conversion. The first meeting Samuel Morton and viewing his collection of skulls in Philadelphia. The second event occurred in Philadelphia. Apparently, Agassiz had his first encounter with African Americans in a hotel in Philadelphia, and he was disturbed by their features. When a Black waiter approached his table, he wanted to flee. "What unhappiness for the white race," he exclaimed, "to have tied their existence so closely with that of Negroes .... (T)his (is a) degraded and degenerate race.

Agassiz's legacy is not only the statues, schools, streets, and museums in Cambridge emblazoned with his name but also the bevy of students who were under his tutelage at Harvard University. He trained virtually all of the prominent U.S. professors of natural history during the second half of the nineteenth century. Nathaniel Southgate Shaler and Joseph Le Conte were two of his students who became influential in the political debates concerning racial inferiority. " ...

It is not the task of this Anthology to further follow the Intra-American travels of Louis Agassiz theories on the origin of races as well as its international travels. We note though, that as part of the discussion of the issue of Switzerland's and the involvement of Swiss in slavery in the United States, Louis Agassiz was drawn on to the Swiss scientific, political scene two hundred years after his birth in 2007. We note though, that Louis Agassiz in most of the popular books on Swiss emigrating to the United States is amongst the personalities described. In Karl Lüönds book Schweizer in Amerika, 1979, p. 11 to 21 "Louis Agassiz, Der schweizerische Humbold" (the Swiss Humbold), he is vividly described as a major figure of American natural science in the 19th century. His writing on the theory of races is not mentioned. The description of Helmut Stalder in Verkannte Visionäre, 24 Schweizer Lebensgeschichten (misunderstood visionaries – 24 Swiss lives), of Zurich 2011 already contained the subtitle "the Swiss Humbold and his shadow". The last paragraph with the title Späte Schande, (late discgrace), of this book, highlights Agassiz theory of races and the scientific analysis and assesmentof Stephen Jay Gould of Agassiz theory of races. Helmut Stalder briefly analyses as well the political activities in Switzerland after the Fessler book and states the reasons why the competent communities refused into rename Piz Agassiz as requested(see below) - in the context of interpellation of a member of the Swiss parliament to the Federal Counsel.

b) Summary

In the context of the document of the interpellation and the answer of the Federal Councill the following context is important to take note of the link to the sudden upsurge of the slavery issue in the Swiss discussions after the turn of the millennium and the particular role Louis Agassiz played in the Interpellation at hand of the Swiss government.

With respect to the official statements of the Swiss government concerning the issue Switzerlands and Swiss relationship to slavery the following can briefly listed. Though, according to David Bouda Etemad, Janik Marina Schaufelbuehl, La Suisse et L'esclavage des Noirs, in the introduction, the Federal Commission on Racism states p. 6-11. In March 2001 in a memorandum among others: "La Suisse peut et doit condamner la trait négrière, l'esclavage et le colonialism on temps que manifestation historique participants (....) d'une meme vision racial de l'humanité, qui a profondément blessé et lésé les individues et les peuple concernés" ... "La Commission soutient le principe d'un reparation (....) tout on affirmant l'importance primordial, a ses yeux de 'l'expression publique par la Suisse d'un reconnaissance morale des texts infligés par la traite negrière, l'esclavage et le colonialism." Two months later, Switzerland had signed the Declaration of Durban in connection with the Third World Conference on Racism. The text reads among others "Nous reconnaissance (paragraph) 13, que l'esclavage et la traite des esclave constituent un crime contre l'humanité ..." The representative of Switzerland in Durban, Jean-Daniel Vigny is alledged to have said, "nous n'avons rien d'avoir avec l'esclavage, la traite négrière ou le colonialsm." (We have nothing to do with slavery, the traité négriaire or colonialism.) The issue of slavery thereafter has become a recurring theme in parliamentary interpellations. (See Interpellation of Pia Hollenstein of March 5th 2003 on the Swiss involvement in slavery and the transatlantic slave trade and Interpellation of Josef Lang on Switzerland and slavery of March 3rd, 2006 (http://parlament./ch/d/suche/Seiten(Sklalverei)

In the interpellation at hand of a member of the house of representatives of Switzerland to the Federal Council of June 22, 2007 concerning directly and exclusively Louis Agassiz, the following is requested. The Federal Council is asked to pronounce itself on the racist nature of the views and the judgments of Louis Agassiz. Further he is asked to state on the incompatibility of those views with the Swiss Constitution. He is asked to rename Piz Agassiz and to give it a new name by a formal decision of the Federal Council "Rentyhorn" this had been done in 1863 with theprenaming of the "höchste Spitze" (highest speak) to Dufourspitze in the Sonderbundkrieg (the general of the Swiss army). The reasoning of the Interpellation is based on scientific judgements of Louis Agassiz theory of races and on the book of Hans Fessler, arguing, that a racist attitude and values are contrary to the values of the Swiss constitution. In consequence, Piz Agassiz should be renamed to Piz Renty.

The answer of September 9th 2007 from the Federal Council states as follows, Louis Agassiz work as renowned geologist and paleontologist should be recognized. The racist attitude on the other hand should be condemned. The question if a historic person violates the Swiss constitution should not lead to a post humous dettamination of the work of a person as a whole. There is no reason to change the name of Piz Agassiz, which is widely accepted. We confirm that the naming of the mountain is not in contradiction with Agassiz racist views. As regards to the renaming, the Federal Office of Topography, the respective Cantons and the communities are competent to decide. The renaming of Dufourspitze in 1863 is an exception and can not be used as a precedent for renaming Piz Agassiz.

c) Text

You can find a scan (PDF) of the original text here:
A_2.23_AGASSIZ_vom Sockel holen und dem Sklaven Renty die Würde zurückgeben

a) Background

Jean Louis Rodolphe Agassiz (May 28, 1807 – December 14, 1873) was a Swiss biologist, geologist, physician, and a prominent innovator in the study of Earth’s natural history. He grew up in Switzerland and became a professor of natural history at University of Neuchâtel. Later, he accepted a professorship at Harvard University in the United States and became a towering figure of American natural science in the 19th century and an institution builder in the 19th century. The recent biography of Christopher Irmscher, Louis Agassiz (2013) called him in the subtitle Creator of American science.

We include Louis Agassiz in this Anthology, because he wrote a contested theory of races which became an issue in the 19th and the 20th century among American scientists.and an interesting issue in the Swiss political process around the 200rd birthday of Agassiz in Switzerland in 2007. Switzerland and Swiss scientists – “the Swiss get up early but wake up late” – have dealt with the specific involvement of Swiss nationals, Swiss companies and the Swiss government (see text 2.23) with American slavery at a late stage and only under the pressure of public opinion.

In order to facilitate the reader and users access to the alledgedly racist theories of Louis Agassiz in polygeny we refer to the views of Stephen Jay Gould, an irreproachable scientific witness to deal with the issue. By coincidence Stephen Jay Gould was a late successor as head of the Harvard Museum on Comparative Zoology, of which Louis Agassiz was the founder. It seems to be helpful, that any further analysis of the travelling of Louis Agassiz theories of races for instance in to anthropology (see text 2.23) and into law to deal with an analysis of a natural scientist. This compliments Louis Menands positioning Louis Agassiz in his history of ideas of the great thinkers of American reconstruction (see text 2.21) and Lee Bakers in his positioning of Louis Agassiz in his construction of race in Anthropology (see text 2.22).

Stephen Jay Gould (September 10, 1941 – May 20, 2002) was an American paleontologist, evolutionary biologist, and historian of science. He was also one of the most influential and widely read writers of popular science of his generation. Gould spent most of his career teaching at Harvard University and working at the American Museum of Natural History in New York. In the later years of his life, Gould also taught biology and evolution at New York University. Gould was awarded many scientific prizes and elected to many bodies of academics of science. In our context it is interesting to note, that Harvard promoted him to Professor of Geology and Curator of Invertebrate Paleontology at the institution’s Museum of Comparative Zoology; he very often described himself as a taxonomist.In 1982 Harvard awarded him the title of Alexander Agassiz Professor of Zoology. Alexander is the son of Louis Agassiz, a successful scientist as well.

b) Summary

Stephen Jay Gould is the author of the book at hand – The Mismeasure of Man (1981), a history and inquery of psychometrics and intelligence testing. It was reprinted in 1996 with the addition of a new foreword and a critical review of The Bell Curve. The Mismeasure of Man has generated perhaps the greatest controversy of all of Gould’s books. It has received both widespread praise and extensive criticism, including claims of misrepresentation. Gould investigated the methods of nineteenth century craniometry, as well as the history of psychological testing. Gould claimed that both theories developed from an unfounded belief in biological determinism, the view that “social and economic differences between human groups—primarily races, classes, and sexes—arise from inherited, inborn distinctions and that society, in this sense, is an accurate reflection of biology.”
The excerpt at hand deals with Gold’s specific analysis and interpretation of Louis Agassiz theory of polygenysm. From a perspective of a natural scientist.

a) Background

De  Tocqueville since 1842 had actively engaged in debates in the Chamber of Deputies on issues such as slave trade, Algerian coalition and reforms and the question of succession after Louis-Philippe's death in which he favoured an elective regency. The text was written in a time in which de Tocqueville was acting in the limelight of the revolutionary developments. At the time de Tocqueville prophesized on the 27th January the coming revolution and attacked the too-narrow base of the official political systems. On the 24th April de Tocqueville was elected to the Constituent assembly and on 17th May to a committee in charge with drawing up a new constitution. The text was published after the 24th February, when Louis-Philippe no longer ruled and the Second Republic was declared dead.

Alexis de Tocqueville makes a direct and special reference to governmental organizations of Switzerland in the following two texts. They are grounded in de Tocqueville's deep historical knowledge as evidenced in Democracy in America. The text distinguished the Federal Constitution of the United States of America from all other Federal Constitutions. It is a short comparative note including direct references to Switzerland. The text was written before the political developments that led to the Federal Constitution of the republic of Switzerland in 1848. The second excerpt consists of appendix II, which de Tocqueville deliberately added to Democracy in America. The text is a written report on a book On Democracy in Switzerland, which de Tocqueville had presented orally before the Academy of Moral and Political sciences on the 15th January  1948. The title of the book on which de Tocqueville reports is De la Democracie en Suisse (On democracy in Switzerland), 2 vol., Paris, 1843, the author M. Cherbuliez, was a professor of public law at the Academy of Geneva.

b) Summary

The short text addresses the fact that despite the United States influencing several governmental models in Europe including Switzerland, the German Empire and the Republic of Netherlands these countries have been or remained confederative. The text deals with the surprising observation that in spite of the fact that the powers granted to the Federal Governments were nearly the same as those accorded to the Government of the United States, the Federal Government in these various countries always remained weak and impotent, where as that of the American Union conducts its affairs with assertiveness and strength. This is embedded in principles, which do not strike one at first glance, in the American Constitution. Alexis de Tocqueville elaborates on the key elements of the transformation of the first American Union to the Federal Constitution of the United States of America of 1789. The text addresses the distinctive features of this new Federal Constitution compared to the examples such as Switzerland, the German Empire and the Republic of Netherlands. The frame of reference with regard to Switzerland is not the Federal Constitution of Switzerland in 1848, since Alexis de Tocqueville's Democracy in America was written in 1835. The text has to be read in conjunction with the appendix II report given before the Academy of Moral and Political Sciences on the 15th January  1848, on the subject of M. Cherbuliez's book entitled on Democracy in Switzerland.

[Switzerland as a paradigmatic case of political integration]

a) Background

The text at hand is a published transcript of a lecture of Karl W. Deutsch presented in Switzerland in German. The actual text has not been formally published. The text is the translation by the political scientist Daniel Frey, who published the text in Switzerland in 1976. Daniel Frey was a pioneer of political science in the German-speaking part of Switzerland; he was trained among others at the University of Michigan and held the first chair for political science at the University of Zurich. Unfortunately he died young. The text is in line with the purpose of the Anthology not to lose sight of the longstanding and special relationship between the United States and Switzerland in legal and political matters. It is a striking example of a subcategory of American political scientists and lawyers who have time and again been interested in Swiss law and legal culture as a source of inspiration for their own work. The text describes the Swiss model of federalism as a paradigmatic example of political integration. Other examples of American legal or social scientists are; Max Reinstein, in a comparative and quantitative analysis of the substantive family laws on the border in the canton of Ticino of Switzerland and Italy on divorce; and the field studies of the Nobel Prize-in-economy-winning political scientist Elinor Ostrom on the Commons as "long enduring, self-organized, and self-governed organisations of communal tenure in high mountain villages in the canton of Valais".

Karl Wolfgang Deutsch (1912-1992) was a towering figure in international social, legal and political science in the post-World War II era. Because of his Czech nationality and anti-german attitude he did not graduate in law from the german University at Prague. He instead joined its Czech counterpart, the Charles University, where he obtained a law degree in international and canon law and in political sciences in 1938. He did not return from a trip to the United States and obtained a scholarship to carry out advanced studies at Harvard University, where he received a second PhD in political science in 1951. During World War II he worked for the Office of Strategic Services and participated as a graduate student in the San Francisco conference that resulted in the creation of the United Nations in 1945. In his academic career, Deutsch was a professor of political science at the Massachusetts Institute of Technology, Yale University and Harvard University until his death in 1992.

Karl Deutsch has a special affinity to Switzerland for various reasons and became a critical "friend of Switzerland". He was on the board of prestigious foundations and obtained honorary doctorates from seven universities in the United States, Germany as well as Switzerland. He was an avid student and knowledgeable expert on the history, function and sources of political integration in Switzerland.

b) Summary

Karl W. Deutsch assesses the situation of the political integration in Switzerland, based upon his important scientific work in the areas of integration and nationalism, political cybernetics and conflicts in his research. Deutsch at times was particularly legitimated to deal with the issues, since he worked for years, originally together with the historian Hermann Weiermann, on a major work on Switzerland - which to our knowledge has never been finished. The text is one of the texts in the Anthology written among others on Swiss law and legal culture by a non-Swiss author. In the introduction, he focuses on the Swiss political integration by using four basic concepts of the theory of integration.

In the main part of the text, Deutsch deals with the "special case Switzerland", the so-called - nowadays criticised – "Sonderfall der Schweiz" (special case Switzerland). The basic question to be asked is why the process of integration in Switzerland happened and why such a singular process with the effect that a particularly constant and particularly close integration amongst the people, who strongly adhered to their languages and to the regional and other singularities to such a large extent, exists. The process has happened over a long period of time with minimal common apparatuses of government, without common police, without common courts and with a minimum of institutions and a minimum of binding and enforceable laws. The Swiss Confederation for a long time did not have a special and separate authority from those of the Cantons.

The major headings of the arguments of Deutsch to answer the question are geography, the special nature of the peasants and population, the traffic overpasses and the money economy, the ownership of weapons, the heritage of the communal movement, the lack of suppression of the peasants, the technique of federalism, a political culture of mitigation and courage, a stagnation and the existence of oligarchies from 1555 to 1770, the formation of capital as a prerequisite for the industrial revolution and a mitigation of social contrasts.

As a critical friend of Switzerland, Deutsch - in 1976 - addresses the challenges of the 20th and the 21st century for Switzerland. He is particularly critical in arguing that a policy of accommodation conflicts with a policy of innovation, in which Switzerland has been the champion for a long time. With regard to the aspect of innovation, he seems to favour a multiparty system. He had the courage to draw the attention to the fact that many scientists and famous Swiss writers more intensively focus their attention not on what has to be done, but on what has not been done. He raises the question of whether Switzerland is not at a watershed between a conservative paralysis and a creative new development. He argues that the leading American universities for competitive reasons for instance have the capacity to integrate 20-50% of the age groups of young people in their educational system. The same holds true for research and innovation in order to overcome the scarcity of natural resources of a country like Switzerland. Karl Deutsch points to a specific competitive pressure in the area of the competiveness of key industries. A country that is unable to change without losing its essential identity may be in danger in future instability and even lose its existence. The solution of the problem, according to Karl Deutsch, lies in accommodating change while maintaining essential parts of the identity.

c) Text

You can find a scan (PDF) of the original text here:
A_2.26_DEUTSCH_Paradigmatischer

[Claims for a written constitution, constitutional amendments and constitutional conventions]

a) background

The excerpt at hand is part of the introduction to the first volume by Alfred Kölz "Neuere Schweizerische Verfassungsgeschichte, ihre Grundlinien vom Ende der Alten Eidgenossenschaft bis 1848". It deals with the new institutions of government and society of the 18th century and describes the effect of these developments within Switzerland. The excerpt deals with the background of a written constitution, of the change of constitutions and the constitutional convention. In that area, the influence of the developments in America and the later United States are of great importance to Swiss developments. Kölz deals with the idea of a written constitution in the second part of the 18th century. The necessity of a written constitution is closely viewed in the context of the general rationalism and the thinking in systems and principles. Certain key functions had to be taken care of in the writing of a constitution. Kölz was a Swiss Professor of Law at the University of Zurich. He has written the seminal work on the history of the Swiss constitution in two volumes with two accompanying source books. He was a well-known teacher, as well as an out-of-the-box political thinker. Together with Jürg Paul Müller of the University of Berne he wrote - as part of a student seminar - a basic draft for a new Swiss constitution. He was well known for his political independence as well as his opinions on popular rights and environmental protection.

b) summary

From a historic and political perspective the ideas of a written constitution first materialized in North America, in the states of New Hampshire (1776), North Carolina, Virginia, Pennsylvania (1776), Massachusetts (1780) and under the Union (1787). The key function of the written constitution of the American Union is to link the individual states together and establish independence vis-à-vis England. Kölz draws attention to the fact, that before the common conclusion of the French constitution the "Republic of Geneva" (22nd March 1791) and Poland (3rd May 1971) also introduced written constitutions based upon the French model of 1791. These aspects in Switzerland were modelled after American developments. The state of Georgia is a precursor of the constitutional initiative. The institution of a constitutional convention was institutionalized. Both were introduced first in Pennsylvania (1776) and then in Massachusetts (1777). Moreover Condorcet's influences on the introduction of an institutional revision in the written constitution are important. Moreover Condorcet's influences on the introduction of an institutional revision in the written constitution are important.

c) text

You can find a scan (PDF) of the original text here:
A_2.29_KOLZ_Forderungen

a) Background

A Special focus of this part of the Anthology is on the cultural exchanges and cultural encounters between Switzerland and the United States. According to James Hutson it is not immodest to say that we are talking about a special relationship. He writes in the introduction to the book at hand, that in 1776 the government of Switzerland known to its citizens as Eidgenossenschaft (community of the oath) had existed for almost 500 years. The Eidgenossenschaft was a Confederacy of 13 states called Cantons, which where republics of various sizes, some democratic, others aristocratic”. Republics were rare in 1776 and had little company in 18th century Europe. As the introduction states, therefore, many Swiss welcomed the Declaration of Independence of the United States “since it ushered a soulmate into the community of nations.” Republicanism was not the only bond between Switzerland and the United States. From 1776 on, political developments in one country often paralleled those in the other, and on important occasions served as a constitutional model for the others. First, according to James Hutson, the Amercian national constitution, the Articles of Confederation, was constructed on the Swiss model of a confederacy of some over sovereign states. Then, Americans repudiated confederal government in 1787 as impotent and unworkable and adapted a new federal constitution. The opponents of the new charter, the Anti Federalists argued that a Swiss style government was still a viable model which offered the best hope for the preservation of American liberty. The Swiss themselves repudiated confederate government in 1848 using many of the same arguments Americans had marshalled against it in 1787 and adapted a Federal constitution modelled after the American constitution of 1787. After the Civil War many American state and local governments adapted constitutional reforms borrowed from the Swiss. The initiative and referendum – which continues to this hour to give the politics of California and other influential states their distinctive tone. The institutional borrowing, according to James Hutson, between the United States and Switzerland ceased after the first World War. Not long afterwards Swiss and Americans ceased referring to each others countries as sister republics.

The editor has divided the book in various chapters, following the chronological order of the book and parallelizing it with the chronological and topical order of the part of the Americanization of Swiss law and legal culture of the Anthology. The book is a welcome addition to the views of the legal relationship between the United States and Switzerland by an American view. The book is vividly written and contains pictures. It is addressed to a broader public and contains a number of footnotes for further research. It is a short and coherent “red thread” (Roter Faden) of the history of the relationship from 1776 to about the first World War.

The author of the book James H. Hutson received his PhD in history from Yale University in 1964. He has been a member of the history department in Yale and William and Mary. Since 1982 he has been chief of the Libraries manuscript division. Dr. Hutson is the author of several books (see biography). We particularly draw the attention to a text written after World War II on the bombing of the Swiss city of Schaffhausen in April 1944 by American airplanes.

b) Summary

The text at hand is a chapter of the book The Sister Republics, Switzerland and the United States, from 1776 to the present, which accompanied an exhibition of the Library of Congress opening in May 1991 to celebrate the 700th anniversary of Switzerland.

The chapter of Hutsons book has to be read in conjunction with the text of William Rappard on Pennsylvania and Switzerland; the Americanization of the Swiss constitution, 1848 (text 2.27), which Hutson cites on several occasions. This chapter again contains interesting insights from an American perspective, which are relevant to the broader concept of the Anthology on legal culture.

"Sympathy for the American cause was far from universal in Switzerland. Though more scholarship is needed to establish the point, it appears that the Swiss divided along class lines in their reaction to the American Revolution. The secretary to the British Embassy in Bern reported to his superiors in 1780 that Swiss elites wanted to see the rebellion crushed, apparently because the subversion of authority being achieved by the Americans might prove contagious among restive populations in various Swiss Cantons. Their fears were evidently well founded, for scholars have claimed that the American Revolution was the model (Vorbild) for two of the most striking episodes of popular unrest in eighteenth century Swiss history: the peasant revolt led by Nicolas Chenaux against the government of Fribourg in 1781 and the Stäfa affair in the Canton of Zurich in 1795-96."

According to Hutson, there is no doubt, that the turmoil, created by the French Revolution focused the attention of many Swiss on the American constitution of 1787. In 1798 French troops invaded Switzerland, rapidly conquerded it and imposed the bone and indivisible Helvetic Republic. The Helvetic Republic was an example of what the American antifederalist called a "consolidated" government. The sovereignity and the independence of the Cantons were abolished and all power was exercised by a five-man directory.-Few were sorry when it collapsed in 1803. According to Hutson many Swiss who opposed the Helvetic Republic, did not want to revert to the politics of the old Confederation, in which the old Cantonal sovereignty had frustrated the achievement of worthy national objectives. What was needed, according to Hutson, was a federal system, such as the framers of the American Constitution had established in 1787. "According to William Rappard the trauma of the Helvetic Republic made the United States "very fashionable" with the Swiss. Politicians, academics and clerymen began extolling the American constitution as a model for Switzerland.

The text at hand comments the trials of tribulations of Switzerland in 1803 , in 1813 and the later steps of 1815 arguing that the revolution in Paris that year had encouraged Swiss liberals to oust, the aristocratic leadership. Many of the important Cantons established new governments that were based, according to Hutson, on a model of Jacksonian Democracy In the United States of popular sovereignty. Swiss liberals though were not prepared to open the door of political participation as wide as the Americans were. The text then traces step by step the developments up to 1848. Attractive though the American model appears to have been to many sections of the Swiss public, Swiss politicians, were in no hurry to adopt it as foundation of a new constitutional order. After the Swiss "Civil War" the political situation was such, that the diet installed a comitee to devise a Constitution, the drafting of which would be controlled by liberals and radicals. Hutson notes the uneven length of the constitutional document and cites Rappard again that it was drafted as a "conscious and deliberate imitation of American model". This was specifically the case in regard to bicameralism and federalism. As to federalism, the Swiss constitution of 1848, like the American constitution  of 1787, converted a league of sovereign states into a federal state, in which power was divided between different levels of government. Hutson notes differences in the making of the seperation of powers, the executive branch as the Swiss Federal Tribunal and finally as regards the power given to the central  government.

The text ends: "Despite these differences - and it would be possible to mention more - the important fact to remember in assessing the ties between the Sister Republics is that the major institutional features of the Swiss Constitution of 1848 - bicameralism and federalism - were copied from the American Constitution of 1787. As a Swiss scholar has recently asserted, one "could almost speak of a plagiary. " – a citation of an unpublished paper "The United States Constitution and Switzerland"of Jean-Francois Aubert, one of the most learned representatives of Swiss constitutional law, who was American trained as well.

c) Text

You can find a scan (PDF) of the original text here:
A_2.28_HUTSON_American And Swiss Constitution 1848

[Ideas of government originating in the "atlantic" area ]

a) Background

The text at hand is an excerpt of Alfred Kölz's "Neue Schweizerische Verfassungsgeschichte, Ihre Grundlinien vom Ende der alten Eidgenossenschaft bis 1848". The text reflects the concluding remarks of the second volume which was published shortly after Alfred Kölz's unfirmely death. Kölz was a Swiss Professor of Law at the University of Zurich. He has written the seminal work on the history of the Swiss constitution in two volumes with two accompanying source books. He was a well-known teacher, as well as an out-of-the-box political thinker. Together with Professor Jürg Paul Müller of the University of Berne he wrote - as part of a student seminar - a basic draft for a new Swiss constitution. He was well known for his political independence as well as his opinions on popular rights and environmental protection.

b) Summary

The posthumously edited and published 2nd volume of the seminal Verfassungsgeschichte und ihre Grundlinien in Bund und Kantonen seit 1848 contains remarks on the attempts for a total revision of constitutions after World War II (chapter 26), enforcement of a sovereignty of the people (chapter 27) and its constitutional history as source of inspiration for the future of Europe (chapter 29). The concluding remark is the excerpt at hand. It deals with the Ideen aus dem "Atlantischen" Raum (Ideas of government from the "Atlantic area"). Kölz's interesting view of the circular travels of ideas in the Atlantic Area is an important part of the ideas that became effective in the times of the Helvetic, the regeneration and the democratic movement in Switzerland which originated in ideas of natural law of enlightenment; in particular in the creative constitutional thinking of the American and French revolutions. These ideas that were developed in the "Atlantic area" were received with particular enthusiasm in Switzerland, since despite the aristocratic developments in the 17th and 18th century, a republican thinking based on cooperative forms of democracy survived. Additionally, certain direct-democratic institutions such as the referendum, the initiative and occasionally the recall have been taken over at an early stage in various terms. On the other hand in the 1890 of the 19th century democratic movements, particularly in the Western States of the American Union, were parallel and similar to those in Switzerland. It was the case not only with respect to the economic and the social problems but also with the means for their solution. The target was a "populist movement" against the power of the trusts and the economic privileges of the abuses of power by the politicians. Kölz assumes that the ideas have been brought to the attention of the people in the Western States of the Union by Swiss emigrates, particularly from the Canton of Zurich and the Confederation. The developments led to the initial integration of a popular initiative, the referendum and the recall in most of the Western States. These developments lead to travels of democratic thinking of the French revolution and of the Swiss democratic movement to the United States. (See text 2.17 by William Rappard and text 2.18 by James Hutson)

c) Text

You can find a scan (PDF) of the original text here:
A_2.30_KOLZ_Atlantischen Raum

[Words of introduction to a monograph comparing the north American and Swiss constitutional law]

a) Background

The part of the Anthology on Americanization of Swiss law and legal culture of the Anthology tries to grasp evidences of cultural encounters and exchanges between Switzerland and the United States, with the particular focus on legal culture. The Anthology largely is text based. Individuals as shapers and legal institutional environments as breeding grounds for the legal realities are complementing the texts. At times the political circumstances and personal situation and education maybe present in the same person and in the same institutional legal environment. Johann Jakob Rüttimann is such a representative of the time, which Gordon Craig described in the Triumph of Liberalism, Zurich in the Golden Age, 1830 - 1869. We look at his life through the lense of the leading biography of Alfred Escher (see Joseph Jung, Alfred Escher, 1819 - 1882, Der Aufbruch zur modernen Schweiz, Zürich 2006),  the major shaker and maker of the political, institutional, educational and economic realities of the time, Johann Jakob Rüttimann was one of Eschers longstanding and closest friends. Both were lawyers, both were marked by the law professor Friedrich Ludwig Keller. Where Rüttimann had a priority in life on his scientific career, Escher left academia in favour of a political career. Rüttimann reached the highest legal, political and economic offices and positions: From Privatdozent (1844-1854) to professor of Zurich civil law and Swiss constitutional law at the University (1854-1872), professor for public and simultaneously for administrative law at the Swiss Institute of Technology (1874-1876). From 1884 until 1954 he was a member of the new Swiss Federal Tribunal. At the same time as Alfred Escher, Rüttimann became a member of the Grosse Rat of the Canton of Zurich (1844-1862). He was elected to the executive of the Canton of Zurich at the same time as Escher and stayed there until 1956. Rüttimann represented the Canton of Zurich as a Senator (1848-1854 and 1862-1869). On the level of the Confederation he was elected twice the president of the Senate (1850-1851) and (1865-1866). He made decisive contributions to the formulation of the Federal Constitution in 1848. Contrary to Escher, he argued for a bicameral system with a moderate senate to reconcile the loosers of the Sonderbundskrieg. Escher considered Rüttimann to be a legal genius and a legal conscience for his economic endevors and involved him in leading position in the Nordostbahn, the foundation of Credit Suisse, the Rentenanstalt and the Federal Institute of Technology.  Rüttimann acted for Escher as the legal conscience of those institutions and as the deciding authority on all legal and political issues. Rüttimann in 1846 was made a colonel in the army, an area unfamiliar to Escher.

Rüttimann was the author of many legal publications with an unusual focus on anglo-american  topics, which span from English civil procedure to questions of organization of government and comparative analysis of the Swiss and the North-American Confederation. He was the draftsman of important legislations on the level of the Canton and on the Federal level. Rüttimanns life is underresearched. According to biographies though, Rüttimann was on one hand knowledgeable about legal matters - about English as well American legal matters – and on the other hand put them to work in his political functions. In a sabbatical he analysed the British Court system and wrote a publication "Der englische Civilprocess mit besonderer Berücksichtigung des Verfahrens der Westminster Rechtshöfe". (The English Civil Procedure with special reference to the procedure of the Westminster courts) which later was the theoretical basis for the introduction of the jurysystem in various parts of law on the Cantonal as well as on the Federal level. His journalistic and academic activities marked the formation of the constitution of 1848 bringing forward strong arguments in favour of the American bicameral system. He gave a public presentation "Zur Geschichte und Fortbildung Zürichs" (the history and the development of the court system of the canton of Zurich, comparing that history with English history). He wrote a text "Über die Schweizerische Eidgenossenschaft und Neutralisierung des Bundesrechts zu Gebote stehende Organe und Zwangsmittel". (The organs and elements of force available for the realisation of Federal law), which contained many comparisons with the American constitution. In 1871 he wrote an article honoring the German professor Mohl with the title "Kirche und Staat in Nordamerika" (church and the state in northern America). His main academic work was a treatise published in three parts with the title "Das Bundesstaatsrecht, verglichen mit den politischen Einrichtungen der Schweiz" (constitutional law of north America compared to political institutions of Switzerland, published in 1857, 1867,1872 and 1876.

The editor notes, that Johann August Rüttimann in general and his early scientific analysis of aspects of Anglo-american law is hardly known in Switzerland and is not part of common knowledge - with the exception of William Rappard, who in text 2.27 specifically cites part of the text at hand and gives Johann Jakob Rüttimann his due place in the legal relationship between Switzerland and the United States.

b) Summary

The text at hand is the Vorrede (Words of Introduction) to the three volume comparison of constitutional law of North America and Switzerland. According to a biographer, Johann Jakob Rüttimann began with this treatise in the 1860ies. He was assiduously working with American and English sources and, according to the bibliography, with American,English and French literature. Rüttimann did not travel to the United States and did not meet American politicians as well as American constitutional lawyers. He did it all by himself from his working desk at the University of Zurich.

The short document is a text evidencing great modesty about his own work and his great respect and admirationfor the American nation and its legal institutions. Rüttimann views the North American Nation with a destiny to play a major role in the world, after the "threatening cancer of slavery" had been operated on and to large extent overcome in the Civil War. He hopes, that the "dark spots" in the Union and some parts of it would be overcome. Why should not the government by the people prevail in the Union just as it did in New England? He hails the solution of the mending of a great number of people of various background, thereby mainting opportunities and peculiarities of its parts to a large extent.

Rüttimann views North America as a laboratory for future developments in the world of law. "Wenn die Menschen perfektibel und fähig sind, so wird auch in Europa früher oder später die Einischt, dass die Völker sich zueinander verhalten wie die Glieder eines Leibes, aus Solidarität der Interessen zwischen Ihnen bestehen; dass jede Wunde, welche einem unter Ihnen geschlagen wird, auch alle anderen trifft; dass jeder Streit zwischen einer friedlichen Ausgleichung fähig ist, dann werden sie sich zu einem Bundesstaat einigen und es wird im Völkerrecht in den gleichen Teilen, in welchen wir jetzt das "mittelalterliche Fehderecht erblicken". This view of a potential relevance and application of the historic process and analogizing the federalisation of North America as well as Switzerland in international relations reminds us of Rüttimann's teacher, Johann Caspar Bluntschli's text on The Organization of the European Association", which was published in 1878 (see text 2.1). Rüttimanns words of introduction encourages a positive attitude towards American institutions. The comparison of North American and Swiss Constitutional law, shows a profound knowledge of respect for the subject treated and displays an unsusual cosmopolitan mindset.

The editor thanks Professor of Law Dr. Riccardo Jagmetti, emerite of the Swiss Institute of Technology for having identified Johann Jakob Rüttimann to him. Professor Jagmetti as a professor in the chair at the Swiss Institute of Technology and as a member of the Ständerat (senate) representing the Canton of Zürich is a late successor of Johann Jakob Rüttimann.

c) Text

You can find a scan (PDF) of the original text here:
A_2.31_RÜTTIMANN_Vorrede

a) Background

As in the case of Johann August Sutter (see texts 2.8,2.9,210) Emilie Kempin Spyri had fallen into oblivion after her death in a psychiatric clinic in Basle at the age of 46. In the life of both law and the legal culture of the United States played an important and special role in the story of Emilie Kempin-Spyri. Both have first been brought to the attention of a national and international public by literary works. Emilie Kempin Spyri's life was brought to life by the novel of Evelyn Hasler Flying with the Wings of Wax - the Story of Emilie Kempin-Spyri. It was published in 1991 in German under the title Die Wachsflügelfrau in Zürich.and thereafter translated into English and published in New York in 1993.

Emilie Kempin Spyri is a pioneering woman (see texts 2.32) in law in Switzerland, in the United States and on the European continent as well. Only after the publication of this literary work, Emilie Kempin Spyri was finally rediscovered, recognized, honoured and given her due place in the history of Swiss academic and professional education in law. Since this Anthology uses a broader concept of law and legal culture we include works of literature on persons and the lifes of lawyers contributing to the process of Americanization of Swiss law and legal culture. This is another case (see text 2.10 and 2.11), where concepts and perspectives of the American subdiscipline of "law and literature", which is hardly known in Switzerland, bring an interesting addition to the concept of legal culture. Emilie Kempin-Spyri must have a place in this part of the Anthology on the Americanization of Swiss law and legal culture. Beyond being the first lawyer on the continent of Europe, she early has taught at the University of Zurich on subjects of Anglo-American law and she has published various texts on English and on American law before the end of the 19th century. She above all has emigrated to New York and pioneered the education of women in a private school, which she founded and which later was formally integrated in the program of an existing law school.

We shall not further dwell on the question, why law, lawyers and legal institutions seem to be adequate topics of, attractive and at times preferential treatment by literary writers and directors of films. We note here, that law, lawyers and legal institutions are often creatively and visible dealt by other academic disciplines beyond the discipline of law. The writer Evelyin Hasler did the work for the lawyers by writing the novel Flying with the Wings of Wax – the Story of Emilie Kempin-Spyri.

She has studied psychology and history at the University of Fribourg and in Paris. She was working as a teacher at her domicile at St. Gallen. In the 60s and the 70s she has written books for children and young adults.Her novels usually deal with topics of Swiss history. Her novels are fact based and are the products of extensive research. They are widely read. The work of Evelyn Hasler has been awarded several prizes. Her works were translated in 12 languages. In 1990-1991 she was a Guest Lecturer in the German department of the City University of New York City, which plays a key role in the novel at hand.

b) Summary

Traditional biographies leave out essential aspects of a life from many perspectives. This is particularly the case regards to Emilie Kempin-Spyri and this is particularly important for the understanding of the novel of Evelyn Hasler. Emilie Kempin-Spyri was a member of a known family in the city of Zurich. She first had three children and looked after her family and her husband. Only when she was 30, she with the help of her husband, took private lessons and made up and passed the Matura exams, a prerequisite to enter university. Emilie Kempin-Spyri all along was a mother taking care of her children and the husband. When she realized, that her husband did not acclimatize in New York and later had difficulties in finding jobs to earn a living, the perspective of her legal studies as a means to financially look after a family became very important. Emilie Kempin-Spyri was interned in a psychiatric clinic in Berlin, from there she was transferred to a clinic in Basel. It was refused to her to be further transferred to her preferred clinic in Zurich, her place of origin. She died at the age of 46 in misery and in anonymity. The internment nowadays is contested.

The texts at hand are a series of excerpts from a novel on the life of Emilie Kempin-Spyri. From a postscript of Eveline Hasler it is evident, that the facts of the novel are thoroughly researched in university and public libraries on both sides of the atlantic. The writing of the book was assisted by specialists within Universities and as well as members of the family. Mentioned is as well Marianne Delfosse, the author of the only legal text on Emilie Kempin-Spyri, published in 1994. The novel uses a narrative technique which does not follow a chronological order, it adds and mixes sequences of Emilie Kempin's life in Zurich, in New York, as well in the psychiatric clinics and moves back and forward on the time axis. The descriptions of the various scenes on Emilie Kempin-Spyri's life are usually short, they use elements of dialogue and personal introspection as narrative techniques..

The excerpts of the novel of Evelyn Hasler, Flying with the Wings of Wax - The Story of Emilie Kempin-Spyri are a selection, largely focusing on Emilie Kempin-Spyri's stays in New York; we are aware of the fact, that the selection does not adequately reflect the episodic nature of the drama of the life described.

We include the following excerpts: - Pages 1 and 2, Conversation in the psychiatric clinic Basle in Summer 1899 - Pages 7-9, Arrival in New York City in Fall 1900 - Page 15, Virtual dialogue with the father after the death - Page 41 and 42, Description of professional contacts in New York City - Page 80 to 84, Description of the beginning of law studies in the Summer semester of 1884 as first woman to do so in Zurich - Page 105 - 107, "The first law school for women. A bold experiment, époque - making" - Page 118 - 119, Diappointments in New York and ... - Page 125 - 126, Reminiscing in New York City about the children and the husband in Zurich - Page 132 - 133, Help of New York women and difficulties at the institutions - Page 155 - 156, Positive reports on Emilie Kempin's lectures at the law school

The editor commends the reader and the user to read the full text of the short novel on Evelyn Hasler and to also grasp the episodes of disappointments in Zurich and in Germany and the misery of being interned in a psychiatric clinic.

a) Background

The text at hand is an example of the purpose of this Anthology not to lose sight of the longstanding and special relationship between the United States and Switzerland in legal matters. The text "Pennsylvania and Switzerland": The American Origins of the Swiss Constitution is a good case of "how ideas travel" in a two-way street of cultural encounter and exchange in law and legal culture between Switzerland and the United States. The text is reprinted in the volume Varia Politica, which contains a selection of texts, re-edited for the occasion of the seventh birthday of William E. Rappard in 1953. The text is an extract of the monograph prepared by the author for the occasion of the Bicentennial Conference of the University of Pennsylvania in September 1940.

William Rappard started his career, as a young professor at Harvard University and thereof became an early representative of a rising school of international political science. He then is an eminent cosmopolitan professor of economics, economic history and political science in Geneva. He advised the government of Switzerland over a long period of time on key matters of foreign policy. From 1917 to 1919, William Rappard was a member of various Swiss diplomatic missions to Washington, D.C., London and Paris, including service with the Swiss delegation to the peace conference in France that ended the First World War. He made a strong impression on President Woodrow Wilson and was highly influential in persuading him to choose Geneva as headquarters of the League of Nations. William Rappard's greatest institutional contribution between the world wars was his co-founding in 1927 of the Graduate Institute for International Studies in Geneva, with Paul Mantoux, the internationally respected economic historian and expert on the industrial revolution. For many years he was Rector (President) of tge University of Geneva.

William Rappard was a close observer and avid scholar of complex cultural exchances in law and legal culture between Switzerland and the United States. The text at hand was already written in 1912 and published in the "American Academy of Political and Social Science". During World War II he had a principled discussion with Heinrich Goebbels at the home of essayist and diplomat Carl J. Burckhardt outside Geneva. He was an ardent conservative and guardian of swiss voices and briefly was a member of the Swiss Parliament. After World War II he was part of the delegation of Switzerland in the negotiations of the Washington Agreements, regularising the relationship between Switzerland and the United States after World War II. Besides having an American passport by origin he is a representative of the Romandie, the French speaking part of Switzerland. He mostly wrote his texts in French and in English.

William Rappard's greatest institutional contribution between the world wars was his co-founding in 1927 of the Graduate Institute for International Studies in Geneva, with Paul Mantoux, the internationally respected economic historian and expert on the industrial revolution.

b) Summary

The monograph itself, which extends over 70 pages, was considered too long to be reproduced in the volume. The text therefore only contains those parts that most clearly show the influence exercised by the American Constitution on the drafting of the Swiss Constitution of 1848. William Rappard's text analyses the subject as from a historical perspective, as all political science according to William Rappard must be, if it wishes to become worthy of its name. The text starts with the sentence "The deep constitutional gratitude which Switzerland owes to the United States in general and Philadelphia in particular is such that it can never be repaid".

The monograph itself, which extends over 70 pages, was considered too long to be reproduced in the volume. The text therefore only contains those parts that most clearly show the influence exercised by the American Constitution on the drafting of the Swiss Constitution of 1848. William Rappard's text analyses the subject from a historical perspective, as all political science according to William Rappard must be, if it wishes to be worthy of its name. The text starts with the sentence "The deep constitutional gratitude which Switzerland owes to the United States in general and Philadelphia in particular is such that it can never be repaid".

William Rappard continues as follows: "In 1848 the Swiss ship of state, after a stormy voyage of over 55 years, at last came to port. It found refuge in the constitutional harbor, which had been discovered and chartered by the American statesmen assembled in the Continental Congress in Philadelphia more than half a century before". According to Rappard, the transformation of the Swiss confederation to a fully-fledged nation state "was carried out in conscious and deliberate imitation of the American model". The text is not a summary of the constitutional history of Switzerland from 1798 to 1848; it is a recall of the most significant references to the American example made in public discussion in Switzerland in the course of half century and to show why it finally prevailed. Rappard devoted these sequences of excerpts exclusively to what might be called the case of American-Swiss Constitutional Contagion of 1798-1848.

The first extract of the "The Revolutionary Period" referring to Jean-Jacque Cart is a testimony for a Swiss lawyer having spent two years in Boston from 1769 to 1771. Back in Switzerland he practiced law in his home town before being forced to flee for being involved in the French revolution and settling as a farmer in New York. The revolution of 1798 brought him back to Switzerland; he became a member of a parliamentary formation and constantly drew on his American knowledge and experience. The excerpt dealing with the chapter "The Restoration 1814-1830" deals with the most active centre of Swiss political thought during the Restoration: the Helvetic Society, it highlights various writings of the President of the Helvetic Society, the historian Heinrich Zschokke.

Rappard then turns to the texts of the doctor philosopher Paul Ignanz Troxler in the monograph entitled "The struggle for and against the American System, 1834" and several pamphlets and texts; one of them a "draft fundamental law for the Swiss confederation". Troxler remained faithful to the conception of the draft outline throughout his life. Fifteen years later, he published one of his last political pamphlets under the title "The Constitution of the United States of America as a model for the Swiss Federal Reform" and together with other militant colleagues greatly influenced the formation of the Swiss constitution in 1848, in particular with respect to the introduction of a bicameral system. Rappard's conclusion of this collage and sequence of excerpts reads as follows:

"The story of how the United States, by the force of her example, contributed to the conversion of Switzerland to the principles of bicameral federalism, devised in Philadelphia in 1787, thus reaches its normal conclusion. It has been told with sufficient detail to be fastidious, I fear, but also, I venture to hope, with sufficient clarity to be enlightening. Its special historical interest is limited to the two democracies concerned and, even within their boundaries, is hardly such as to suggest any headlines that might startle the general public. What is of universal interest, however, is the lesson it teaches, the political lesson of how general union can be combined with local freedom. That lesson, which the disunited nations of the world have still to learn from the United States of America, as the united cantons of Switzerland learned it from them nearly a century ago, is one of peculiarly tragic timeliness today. That it has long been understood to be one of world importance is shown by a statement made more than seventy years ago by my fellow countryman Professor Rütimann. In the preface of his monumental comparative study of American and Swiss constitutional practice (see text 2.31), he wrote:

"The North American Union at present unites about forty states of quite unequal size and power in a community of law from which not only war, but also every other form of self-help, has been excluded as entirely dispensable. Likewise in small Switzerland, which was formerly decried as the seat of constant anarchy and wild discord, the federal state has since 1848 justified itself as a foundation on which the citizens of twenty-five cantons, in spite of their diversity of speech, of faith, of political views and of material interests, have been able to live together in happy and ordered circumstances and to develop in common a gratifying prosperity. If mankind is perfectible and capable of constant progress, Europe will also sooner or later come to see that its peoples are one to another as members of one body; that the solidarity between them is real; that every wound inflicted upon one of them spares none of the others; that any conflict between them is susceptible of a look upon our present international law in much the same light as that in which we today look upon the medieval law of reprisals".

c) Text

You can find a scan (PDF) of the original text here:
A_2.27_RAPPARD_Pennsylvania and Switzerland

a) Background

The two texts by Alexis de Tocqueville make a direct and special reference to governmental organizations of Switzerland. Those texts are grounded in de Tocqueville's deep historic knowledge as evidenced in Democracy in America. The text distinguished the Federal Constitution of the United States of America from all other Federal Constitutions. It is a short comparative note with direct references to Switzerland. The text has been written before the political developments that led to the Federal Constitution of the republic of Switzerland in 1848. The second excerpt consists of appendix II, which de Tocqueville deliberately added to Democracy in America. The text is a written report on a book On democracy in Switzerland, which de Tocqueville had presented orally before the Academy of Moral and Political sciences on January 15, 1948. The title of the book on which de Tocqueville reports is De la Democracie en Suisse (On democracy in Switzerland), 2 vol., Paris, 1843;, the author M. Cherbuliez, was a professor of public law at the Academy of Geneva.

b) Summary

The second text at hand is an in-depth analysis of certain features of the birth of the political and institutional governance of Switzerland before the creation of the Federal Constitution of Switzerland in 1848. The text has been written shortly before that point in time and has been conciously included by Alexis de Tocqueville in the book of Democracy in America as an appendix. The text commented by Tocqueville is a book of Mr. Cherbuliez, a professor of public law at the Academy of Geneva, with which de Tocqueville disagreed. De Tocqueville wrote his own views on the revolutionary process lasting over 50 years of emancipation within Swiss institutions of the principles of democracy, starting from a very backward-looking and conservative State at the outset. The text is an eye-opener as to the limited extent of influence of the revolution of the political institutions within Switzerland at the time of the Confederation for 1798 and the long and constant evolution of the developments up until 1848 (see in that context William E. Rappard, text 3.9 with the subtitle "the Americanization of the Swiss Constitution, 1848).

a) Background

The text at hand is an example of the purpose of this Anthology not to lose sight of the longstanding and special relationship between the United States and Switzerland in legal matters. The text "Pennsylvania and Switzerland": The American Origins of the Swiss Constitution is a good case of "how ideas travel" in a two-way street of cultural encounter and exchange in law and legal culture between Switzerland and the United States. The text is reprinted in the volume Varia Politica, which contains a selection of texts, re-edited for the occasion of the seventh birthday of William E. Rappard in 1953. The text is an extract of the monograph prepared by the author for the occasion of the Bicentennial Conference of the University of Pennsylvania in September 1940.

William Rappard started his career, as a young professor at Harvard University and thereof became an early representative of a rising school of international political science. He then is an eminent cosmopolitan professor of economics, economic history and political science in Geneva. He advised the government of Switzerland over a long period of time on key matters of foreign policy. From 1917 to 1919, William Rappard was a member of various Swiss diplomatic missions to Washington, D.C., London and Paris, including service with the Swiss delegation to the peace conference in France that ended the First World War. He made a strong impression on President Woodrow Wilson and was highly influential in persuading him to choose Geneva as headquarters of the League of Nations. William Rappard's greatest institutional contribution between the world wars was his co-founding in 1927 of the Graduate Institute for International Studies in Geneva, with Paul Mantoux, the internationally respected economic historian and expert on the industrial revolution. For many years he was Rector (President) of tge University of Geneva.

William Rappard was a close observer and avid scholar of complex cultural exchances in law and legal culture between Switzerland and the United States. The text at hand was already written in 1912 and published in the "American Academy of Political and Social Science". During World War II he had a principled discussion with Heinrich Goebbels at the home of essayist and diplomat Carl J. Burckhardt outside Geneva. He was an ardent conservative and guardian of swiss voices and briefly was a member of the Swiss Parliament. After World War II he was part of the delegation of Switzerland in the negotiations of the Washington Agreements, regularising the relationship between Switzerland and the United States after World War II. Besides having an American passport by origin he is a representative of the Romandie, the French speaking part of Switzerland. He mostly wrote his texts in French and in English.

William Rappard's greatest institutional contribution between the world wars was his co-founding in 1927 of the Graduate Institute for International Studies in Geneva, with Paul Mantoux, the internationally respected economic historian and expert on the industrial revolution.

b) Summary

The monograph itself, which extends over 70 pages, was considered too long to be reproduced in the volume. The text therefore only contains those parts that most clearly show the influence exercised by the American Constitution on the drafting of the Swiss Constitution of 1848. William Rappard's text analyses the subject as from a historical perspective, as all political science according to William Rappard must be, if it wishes to become worthy of its name. The text starts with the sentence "The deep constitutional gratitude which Switzerland owes to the United States in general and Philadelphia in particular is such that it can never be repaid".

The monograph itself, which extends over 70 pages, was considered too long to be reproduced in the volume. The text therefore only contains those parts that most clearly show the influence exercised by the American Constitution on the drafting of the Swiss Constitution of 1848. William Rappard's text analyses the subject from a historical perspective, as all political science according to William Rappard must be, if it wishes to be worthy of its name. The text starts with the sentence "The deep constitutional gratitude which Switzerland owes to the United States in general and Philadelphia in particular is such that it can never be repaid".

William Rappard continues as follows: "In 1848 the Swiss ship of state, after a stormy voyage of over 55 years, at last came to port. It found refuge in the constitutional harbor, which had been discovered and chartered by the American statesmen assembled in the Continental Congress in Philadelphia more than half a century before". According to Rappard, the transformation of the Swiss confederation to a fully-fledged nation state "was carried out in conscious and deliberate imitation of the American model". The text is not a summary of the constitutional history of Switzerland from 1798 to 1848; it is a recall of the most significant references to the American example made in public discussion in Switzerland in the course of half century and to show why it finally prevailed. Rappard devoted these sequences of excerpts exclusively to what might be called the case of American-Swiss Constitutional Contagion of 1798-1848.

The first extract of the "The Revolutionary Period" referring to Jean-Jacque Cart is a testimony for a Swiss lawyer having spent two years in Boston from 1769 to 1771. Back in Switzerland he practiced law in his home town before being forced to flee for being involved in the French revolution and settling as a farmer in New York. The revolution of 1798 brought him back to Switzerland; he became a member of a parliamentary formation and constantly drew on his American knowledge and experience. The excerpt dealing with the chapter "The Restoration 1814-1830" deals with the most active centre of Swiss political thought during the Restoration: the Helvetic Society, it highlights various writings of the President of the Helvetic Society, the historian Heinrich Zschokke.

Rappard then turns to the texts of the doctor philosopher Paul Ignanz Troxler in the monograph entitled "The struggle for and against the American System, 1834" and several pamphlets and texts; one of them a "draft fundamental law for the Swiss confederation". Troxler remained faithful to the conception of the draft outline throughout his life. Fifteen years later, he published one of his last political pamphlets under the title "The Constitution of the United States of America as a model for the Swiss Federal Reform" and together with other militant colleagues greatly influenced the formation of the Swiss constitution in 1848, in particular with respect to the introduction of a bicameral system. Rappard's conclusion of this collage and sequence of excerpts reads as follows:

"The story of how the United States, by the force of her example, contributed to the conversion of Switzerland to the principles of bicameral federalism, devised in Philadelphia in 1787, thus reaches its normal conclusion. It has been told with sufficient detail to be fastidious, I fear, but also, I venture to hope, with sufficient clarity to be enlightening. Its special historical interest is limited to the two democracies concerned and, even within their boundaries, is hardly such as to suggest any headlines that might startle the general public. What is of universal interest, however, is the lesson it teaches, the political lesson of how general union can be combined with local freedom. That lesson, which the disunited nations of the world have still to learn from the United States of America, as the united cantons of Switzerland learned it from them nearly a century ago, is one of peculiarly tragic timeliness today. That it has long been understood to be one of world importance is shown by a statement made more than seventy years ago by my fellow countryman Professor Rütimann. In the preface of his monumental comparative study of American and Swiss constitutional practice (see text 2.31), he wrote:

"The North American Union at present unites about forty states of quite unequal size and power in a community of law from which not only war, but also every other form of self-help, has been excluded as entirely dispensable. Likewise in small Switzerland, which was formerly decried as the seat of constant anarchy and wild discord, the federal state has since 1848 justified itself as a foundation on which the citizens of twenty-five cantons, in spite of their diversity of speech, of faith, of political views and of material interests, have been able to live together in happy and ordered circumstances and to develop in common a gratifying prosperity. If mankind is perfectible and capable of constant progress, Europe will also sooner or later come to see that its peoples are one to another as members of one body; that the solidarity between them is real; that every wound inflicted upon one of them spares none of the others; that any conflict between them is susceptible of a look upon our present international law in much the same light as that in which we today look upon the medieval law of reprisals".

c) Text

You can find a scan (PDF) of the original text here:
A_2.27_RAPPARD_Pennsylvania and Switzerland

a) Background

The following two texts out of the federalist and out of the anti-federalist papers are to identify the potential influences of Switzerland and Swiss law and legal culture on the formation of the constitution in 1787 of the American Union. From a Swiss perspective, we refer to the text 2.2 of Paul Widmer, der Einfluss der Schweiz auf die amerikanische Verfassung von 1787. The subsequent influence of the American constitution on Switzerland was by far greater than the areas of influence of Switzerland on the American constitution in 1787. Nevertheless, the influence is remarkable and interesting. Two factors plaid a major role, the writings and the acting of founding father John Adams, later president of the United States, and the incontestable influence of the antifederalists - federalists according to Swiss terminology - in favour of a confederation. Switzerland had a parlamentiary entity in the 18th century and a considerable visibility and influence. Whoever was about to draft and adopt a republican, federalist constitution was well advised, to look at the republics in the Alps. In the early United States certain groups have diligently undertaken this effort. Three postitions came simultaneosly to the founding fathers among the federalists - the centralist according to swiss terminology; a Madison and a Hamilton for instance studied the swiss confederation in detail.  The antifederalists left the Swiss confederation aside and considered it not usable for a nation like the United States, in particular in view of the size of the territory.  The federalists studied it but were less precise in the study of the Swiss circumstances.

They adored the spirit of the inhabitants of the Alps. They used Switzerland as crown witness against a centralisation and advocated the leaving of powers to the individual states. in turn John Adams, the first vice president and second president of the United States did not care for Switzerland as a whole. He used the parliamentary organisation of the individual Cantons to find in them arguments for a separation of powers. John Adams, above all was responsible for the timely introduction of Swiss thinking in to the American constitutional dialogue and discussion among the delegates to the Constitutional Convention in Philadelphia.

b) Summary

The Federalist No. 20 was written on December 11, 1787, by James Madison with the assistance of Alexander Hamilton. It was written to the people of the state of New York under the name of Publius. The text deals with the governmental textures of political entities, in particular the Cantons of Switzerland.

James Madison, Jr.(16th March 1751  - 28th June 1836) was an American statesman and political theorist. He is hailed as the "Father of the Constitution" for being instrumental in the drafting of the United States Constitution and as the key champion and author of the United States Bill of Rights. He was the fourth President of the United States (1809-1817). He served as a politician much of his adult life. Like other Virginia statesmen in the slave society, he was a slaveholder and part of the elite; he inherited his plantation known as Montpelier, and owned hundreds of slaves during his lifetime to cultivate tobacco and other crops.

After the constitution had been drafted, Madison became one of the leaders in the movement to ratify it. His collaboration with Alexander Hamilton and John Jay produced the Federalist Papers (1788). Circulated only in New York at the time, they would later be considered among the most important polemics in support of the Constitution. He was also a delegate to the Virginia constitutional ratifying convention, and was instrumental to the successful ratification effort in Virginia. Like most of his contemporaries, Madison changed his political views during his life. During the drafting and ratification of the constitution, he favored a strong national government, though later he grew to favor stronger state governments, before settling between the two extremes late in his life.

In 1789, Madison became a leader in the new House of Representatives, drafting many basic laws. He is notable for drafting the first ten amendments to the Constitution, and thus is known as the “Father of the Bill of Rights”.Madison worked closely with President George Washington to organize the new federal government. Breaking with Hamilton and what became the Federalist party in 1791, Madison and Thomas Jefferson organized what they called the Republican Party (later called by historians the Democratic-Republican Party) in opposition to key policies of the Federalists, especially the national bank and the Jay Treaty. He co-authored, along with Thomas Jefferson, the Kentucky and Virginia Resolutions in 1798 to protest the Alien and Sedition Acts.

As Jefferson's Secretary of State (1801-1809), Madison supervised the Louisiana Purchase, which doubled the nation's size. After his election to the presidency, he presided over renewed prosperity for several years. As president (1809-17), after the failure of diplomatic protests and a trade embargo against Great Britain, he led the nation into the War of 1812. He was responding to British encroachments on American honor and rights; in addition, he wanted to end the influence of the British among their American native allies, whose resistance blocked United States settlement in the Midwest around the Great Lakes. Madison found the war to be an administrative nightmare, as the United States had neither a strong army nor a financial system; as a result, he afterwards supported a stronger national government and a strong military, as well as the national bank, which he had long opposed.

References: http://en.wikipedia.org/wiki/James_Madison

a) Background

The following texts out of the anti-federalist papers are to identify the potential influences of Switzerland and Swiss law and legal culture on the formation of the constitution in 1787 at the time of the American union.

[The Swiss perspective is described in the text 2.2 of Paul Widmer, der Einfluss der Schweiz auf die amerikanische Verfassung von 1787. The subsequent influence of the American constitution on Switzerland and the development up to 1848, as said above, was by far greater than the areas of influence of Switzerland on the American constitution in 1787. Nevertheless, the influence is remarkable and interesting. Two factors played a major role: the writings and the acting of founding father John Adams, the first vice president and second president of the United States, and the incontestable influence of the antifederalists - federalists according to Swiss terminology - in favour of a confederation. Switzerland had a parliamentary entity in the 18th century and a considerable visibility and influence. Whoever was about to draft and adopt a republican, federalist constitution was well advised, to look at the republics in the Alps. In the early United States certain groups diligently  undertook this effort. Three positions had come simultaneously to the founding fathers among the federalists - the centralist according to Swiss terminology; a Madison and Hamilton for instance studied the Swiss confederation in detail.  The antifederalists left the Swiss confederation aside and considered it unusable for a nation like the United States, in particular in view of the size of the territory.  The federalists studied it but were imprecise in their study of the Swiss circumstances. They adored the spirit of the inhabitants of the Alps. They used Switzerland as crown witness against centralisation and advocated the leaving of powers to the individual states. In turn, John Adams,  did not care for Switzerland as a whole. He used the parliamentary organisation of the individual Cantons to find in them arguments for a separation of powers. John Adams, above all, was responsible for the timely introduction of Swiss thinking in to the American constitutional dialogue and discussion among the delegates to the Constitutional Convention in Philadelphia.

Among the more penetrating and comprehensive Anti-Federalist essays were those written by A [Maryland] Farmer in the Maryland Gazette during February, March and April of 1788 (for the first time reprinted in the Antifederalists, edited by Herbert J. Storing). According to Storing no direct evidence of authorship has been found. It seems likely though, that "a farmer" was John Francis Mercer, a non-signing member of the Constitutional Convention and an active Maryland Anti-Federalist. Born in Virginia, Mercer was educated at William and Mary, studied law under Thomas Jefferson, performed extensive military service during the Revolutionary War and represented Virginia in Congress. He moved to Maryland, where he was chosen to serve in the Federal Convention in 1787 but left before its work was finished. The text at hand was reprinted in the Maryland Gazette on 28th March 1788.

b) Summary

The discussion begins with “governments of simplicity and equal right,” which have not been dealt with faithfully in theory and practice (V. 5.1.69). For whatever reasons we seem to be tend¬ing toward mixed government with permanent and fixed orders. If this is our direction let us proceed slowly and carefully. Government by repre¬sentation “sets all system at defiance” by inducing constant change (V. 5.1.71). A representative system can only succeed if based on fixed and permanent orders, but the only such order in America is the yeomanry, which is powerless. The Constitution tries to erect a republic on the ruins of a corrupt monarchy. A government for the United States founded on repre¬sentation requires at least an executive for life and a senate also for life appointed by the executive. The problem is to prevent the executive from becoming hereditary, for which reason the vice presidency is important (V. 5.1.72-74). Having considered the dangers of representation and the requirements of a representative system - if that is what the United States must have - A Farmer returns in the conclusion of this essay to the advantages of simple government (V. 5.1.75-82).

The English system, although good for its kind, is undeservedly praised. It is a rational system, but it required the introduc¬tion of a ministerial system and corruption to support it and it does not prevent poverty in the lower orders and disorder. "England may be com¬pared with Switzerland, whose government is simple and in the hands of the people personally, where every citizen is legislator and soldier and where liberty, peace, and prosperity reign. Government should be in the hands of the people, that is, those who hold the property of the soil. With government in the hands of the freeholders, with reasonable sumptuary laws, and with the institution of seminaries of useful learning, the people would cease abusing their governments and would “wade up to their knees in blood” to defend them" (V, 5.1.82).

a) Background

The text at hand is a scientific article with the title "Americanization of Swiss law - and its limits - "Adversarial Legalism" and the Swiss legal system". The text appeared in the Zeitschrift für Schweizerisches Recht in 2000. The text was written following a simultaneous stay of the co-authors at the Berkeley School of Law where they participated in a political science seminar  given by the political scientist Robert A. Kagan, the author of the text Adversarial Legalism and American Government. The text is a further example in this section of the Anthology on the process of Americanization before and after World War II showing the importance of post-World War II graduate studies of Swiss lawyers at leading American law schools, which have produced a series of specific - some of them LLM-thesis - texts, which have thereafter been published. This is a specific cultural interaction in transatlantic and comparative law matters that cannot be underestimated. The text deals with a key structural element of the American legal system as a whole: "Adversarial Legalism", which is partly technical and partly a metaphoric expression of language.

In light of a missing systematic analysis of the encountered interaction between the two legal systems in the post-World War II era the article, which was published in 2000, has to be situated in the following broader context. Since that time, the influences and the interactions between the two legal systems in various areas have increased considerably. This led to direct and indirect influences on important parts of Swiss law and legal culture. In the meantime for instance important legislation has been passed, such as the Federal Code of Civil Procedure and the Federal Code of Criminal Procedure containing elements that are obviously influenced by American procedural law. With respect to legal cases, a series of real and potential conflicts of jurisdictions in civil and particular in legal assistance matters in the areas of tax law have raised the consciousness of the modern influences of American procedural law on Swiss law and legal culture. We refer to the case studies on the so-called UBS-Case in texts, which arose in connection with the systematically pursued dismantling of the use of Swiss institutions of substantive law, such as the banking secrecy, and Swiss institutions of procedural law, like the international legal assistance in tax matters to avoid paying US taxes.

In the areas of procedural law, "adversarial legalism" in particular has created a lot of attention in connection with the mediaisation of specific aspects of American law and legal culture. There has been a curious spill over effect of American procedural law into literature-novels and plays, as well as into movies,  which has been a key part in the mediasation of law and legal culture. This explains the current situation in Switzerland where for example the perception of attorneys is heavily influenced by the descriptions of lawyers in novels, plays and movies.

The text primarily deals with the subtitle "Adversarial Legalism" and the Swiss legal system. The main title "Americanization of Swiss law, and its limits" is more general and highlights a basic concern of Swiss lawyers which leads to a negative or at least defensive attitude concerning the travelling of American concepts of procedural law into the Swiss legal system.

Regina Kiener is a Professor of Public Law at the University of Zurich. She had various teaching positions at the University of Bern, the University of Basel and the University of Freiburg. Beyond the Swiss borders, she attended the US Law Program at the University of California (Davis and Berkeley) and was a research fellow at the University of California at Berkeley in 1998 - this is important in the context with the text at hand -and at the University of British Columbia in Vancouver in 2012. In 2011 Kiener was a visiting professor at the Hebrew University in Jerusalem. Kiener has published widely and has served as an expert for the Swiss Parliament, the Federal Administration, for cantonal and communal parliaments, governments and higher cantonal courts.

The co-author of the text, Raphael Lanz, presently is the Mayor of the City of Thun in Switzerland, a regional centre in the Canton of Bern close to the Bernese Alps. He studied law at the University of Bern and was admitted to the Bar of the Canton of Bern in 1995. From 1998 to 1999 with the support of the Swiss National Science Foundation he studied at the University of California at Berkeley School of Law. Lanz was a research and teaching assistant at the Department of Private Law at the University of Bern and served as a clerk at the Swiss Federal Supreme Court and the Supreme Court of the Canton of Bern from 1999 to 2001. He was the presiding judge of the district court of Thun until he became Mayor of Thun. Lanz in his early academic career regularly wrote in scientific journals and commentaries.

b) Summary

The introduction of the text describes peculiarities of the American legal system, which in connection with the globalization of the economic markets has a tendency to lead to transborder influences and effects of American law on foreign jurisdictions, which have been - see text 3.13 of Wolfgang Wiegand, Die Rezeption des Amerikanischen Rechts - described as "receptions" remarkable and considerable. The text develops elements of an answer to that question in four areas. The introduction of the text describes peculiarities of the American legal system, which in connection with the globalization of the economic markets has a tendency to lead to transborder influences and effects of American law on foreign jurisdictions, which have been - see text of Wolfgang Wiegand 2.34 , Die Rezeption des Amerikanischen Rechts - described as "receptions" remarkable and considerable. The text develops elements of an answer to that question in four areas.

In part II, the text describes and analyses the sources and reasons for the American system of "adversarial legalism". The text, in part III, raises the issues if there is a tendency for "adversarial legalism" in Switzerland. It particularly deals (1) with the increasing legalisation brought about by the increase of competition, in particular (2) the increase of competition for legal services. The text (3) deals with the legalisation by reason of deficits of trust. The text (4) describes specific impacts of "adversarial legalism" in Swiss legislation. In part IV, the text deals with basic facts that according to the authors limit the influences of "adversarial legalism" in Switzerland due to a series of particularities of the legal and political system. The authors focus on a combination and interplay of various facts that again are mirroring expressions of a certain legal culture. The areas analysed are the limitation of traditional judicial review and the role of the people (1), the role of direct democracy and "Konkordanz" (2), the role of legislation and the enforcement of laws in a federal system (3) and specific influences in procedural law such as the basic principle of procedural fairness and the absence of jury courts to a large extent (4). In (5) the authors deal with cultural factors militating a limitation of the potential influences of "adversarial legalism" of the American structural procedural law concept on Swiss law and legal culture.

The text is an interesting example of the broader American concepts of interdisciplinarity in dealing with legal issues by a particularly political scientific element in a comparative law analysis.

c) Text

You can find a scan (PDF) of the original text here:
A_2.36_Kiener Lanz_Amerikanisierung_ZSR_2000

[The Reception of American Law]

a) Background

The text at hand deals with the "reception" of United States law in the Swiss legal system, an as yet unanalyzed phenomenon of post-World War II international developments. Wolfgang Wiegand's major thesis - later criticized by international comparatives - is that there is a parallel between the reception of Roman law in the Middle Ages in Europe and the reception of American law in today's Europe. This not only results in significant changes in legislative and legal thinking but also leads to a paradigmatic change in Swiss law and legal culture.

The text at hand is a rare example of lawyers in Switzerland dealing with the process of Americanization from a theoretical perspective. It is the only text in the part on Americanization in the Anthology, which in the aftermath of its release raised international attention.

Wolfgang Wiegand is an Professor Emeritus for Civil, Commercial and Banking Law at the University of Bern. He has a German legal education and has been teaching in Switzerland for almost thirty years as a professor. Wiegand has a keen interest on comparative law issues, as evidenced by the text at hand. The text has been criticized because of the far-reaching implications of the use of the comparative law concept of "Rezeption" (reception) for the phenomena described. According to Wiegand the development of Americanization of law has not been analysed or recognized in the literature beyond the usual remarks here and there about the (negative) influence of American law and American "legal imperialism". There was no real study of the reasons for this "imperialism" or its consequences, Wiegand noted in 1988. The text appeared as a contribution of the law faculty of the University of Bern to the Festschrift at the Schweizerischer Juristentag 1988 (the annual meeting of the Swiss Lawyers Association) in Bern. This is in keeping with the tradition that if the annual meeting of the Swiss Lawyers Association takes place in a city or canton that has a University with a law faculty, the members of the faculty are the editors and contributors of the respective Festschrift. The Festschrift had the title "Die Schweizerische Rechtsordnung in ihren internatonalen Bezügen" (The Swiss legal system and it's international dimensions). This is the first time that after World War II the "official" Swiss Lawyers Association has chosen the internationalization of Swiss law as the key topic. Further occasions were the annual meetings of in St. Gallen (2002) and in Geneva (2012).

b) Summary

Wolfgang Wiegand's analysis of facts and observations comes to the conclusion that the study of law at an American university, post-World War II, has in Switzerland a similar value and comparable function as the study of jus commune in the Middle Ages. He observes a preponderance of American-trained lawyers in universities, industry and the bar, with regards to the numbers of the lawyers, the working style and the structure of the law firms.

Wiegang then notes in a variety of areas of the legal system a specific reception of American law in Swiss law. The text identifies new types of business and contracts, new instruments and institutions of law such as trusts and leasing, various developments of economic law such as business law, capital markets and banking, as well as general liability and product liability law, producers' liability and constitutional law.

Wiegand notes that besides this seizure of law and legal thinking, more and more American theoretical methods in law are being taken over by the continent of Europe; he is one of the very early authors in Switzerland to note the potential "travel" of the economic analysis of law across the Atlantic Ocean.

Based upon the comparison to the reception of jus commune in the Middle Ages, Wiegand comes to the conclusion that the reception of American law is an irreversible and unstoppable process. It does not serve to analyse the real reasons and the extent of the process, if one discredits the process as an expression of "American legal hegemony". Wiegang followed up on the topic in later articles published in English; see Wolfgang Wiegand, 'Reception of American Law in Europe', American Journal of Comparative law (1991) pages 229 ff. and Wolfgang Wiegand, 'Reception or Convergence?' in Lawrence Friedman/Harry W. Schreiber (eds.), Legal Culture and the Legal Profession (1996), pages 137 ff.

a) Background

The text is the first chapter of a translated earlier book on the effects of globalization on legal education (2001 and 2003). The book was a special report to the Schweizerischer Juristentag (Swiss Lawyers Conference) in 2002 on the effects of globalization on Swiss economic law. The text is written from a European perspective, in an Anglo-Saxon, bottom-up, issue-driven and largely phenomenological manner. The introduction and the chapter of the book is a look into the kaleidoscope of globalization, a collage of interrelated "objets trouvés".

Jens Drolshammer is a Professor Emeritus of Law at the University of St. Gallen and a former founding and senior partner of an international commercial law firm in Zurich. He practiced internationally for many years dealing with issues of American law and legal culture. He worked in that context from 1999 to 2008 as a visiting research professor at the center of European law research at the Law School of Harvard University, developing a new personalistic approach in analyzing the "travels" and the "impacts" of globalization, which lead to the publication of twenty essays in A Timely Turn to the Lawyer? - Globalization and the Americanization of Law and Legal Professions - Essays (2009).

b) Summary

The book The Effects of Globalization on Legal Education is a blueprint for a professional and network based reorganization and reconfiguration of legal education from an international perspective. The text at hand is the introduction of the part on education.

The text primarily deals with new challenges for the science and the practice of law in connection with a growing interdependence of the world economy. The text analyses and describes the internationalization of law and its effects on the activities of lawyers primarily in the international practice of law. The text describes the vital and dynamic Anglo-Saxon and special American influence on law and legal culture, in particular on the "International Practice of Law". The sedes materie of the spread and "travel" of American legal culture lies in the increasing hegemony of the United States in an ever more globalized world. Actually, this trend cannot be held solely responsible for the occurrence of globalization and its effects; authoritative observers take the view that it would take place even without the influential position of the United States. In practice however, the trend of Americanization dominates; its far-reaching effects and its intensity are further accentuated by the development of the information society. The increasing US dominance observed in international relations, both in foreign and security policy, in the economy and in information society is also influencing law, legal education and the legal professions. In that context, the text focuses on 'new international lawyers' as pivotal actors of the process of globalization in law.

The text describes the changes in growth of the International Practice of Law and identifies the key elements that drive those changes in the international practice such as globalization, legalization, informatization, growing interdisciplinary research, professionalization, market orientation, commercialization, specialization, proceduralization, and a marked tendency for Americanization. As a further prerequisite for the developing of a blueprint of a legal education of the new international lawyering in globalization, the text lays the groundwork for a more active and assertive attitude and mind-set in Switzerland vis-à-vis this growing and complex influence of dependency on Americanization.  The text contains on a meta level an agenda for the formation of a strategy in Switzerland to deal with the phenomenon. The text contains elements of such a strategy in the area of teaching and research, legal policy, professions and professional organisations and information policy and communication. Without a basic change in mind-set to face the encounters with American law and legal culture, it is obvious that any efforts to reconstruct the education of a new international lawyer are likely to be cumbersome and difficult.

c) Text

You can find a scan (PDF) of the original text here:
A_2.35_DROLSHAMMER_Role and the Tendencies

Adolf Muschg was born on the 13th May 1934 in Zurich the only child of the second marriage of his father Friedrich Adolf sen (1872 - 1948), primary school teacher in Zollikon close to Zurich. His mother Frieda was a nurse. Muschg went to the Kantonale Literaturgymnasium, Typus A in Zurich, with a two years intermezzo in the Evangelische Lehranstalt Schiers in the canton of Grisons. From 1953 to 1959 he studied germanistik, anglistik and psychology in Zurich, with two trimesters as a research student in Cambridge - England. He obtained his doctor degree Dr. phil. at the University of Zurich with Emil Staiger with a dissertation on Ernst Barlachs writings. From 1959 to 1962 he was a teacher at the gymnasium in Zurich. From 1962 to 1964 he was a lecturer at the International Christian University of Tokyo; from 1964 to 1967 he was a scientific assistant at the University of Gottingen; from 1967 to 1969 an assistance professor at Cornell University, Ithaca N.Y.; from 1969 to 1970 he was researcher at the University of Geneva. In 1970 he became a Professor for German Language and Literature at the Swiss Federal Institute of Technology in Zurich. In 1997 he was the founding director of the Collegium Helveticum (post graduate college) at the Semper-Observatory in Zurich. In 1999 he became an emeritus.

From 1974 to 1977 he was a member of the commission of the minister of justice for an integral revision of the federal constitution in 1975 he was a candidate of the Social Democratic Party of the Canton of Zurich to become a senator. In 1979 he was a visiting professor for poetics in Frankfurt. In 1975 he was writer in residence at the USC in Los Angeles. From 1987 to 1988 he was a fellow of the Wissenschaftskollegin Berlin. He was the host of the Baden-Badener Dispute (SWF-TV) from 1986 to 1993. In 1995 he was a member of a project group of the Foundation Solidarity Switzerland. From 2003 to 2006 he was president of the Academy of Arts in Berlin, since 2010 he is a member of the Senate of the Berlin-Brandenburg Academy of Sciences.
Additional memberships: Co-founder of the "Gruppe Olten" of Swiss authors, member of the academies of Berlin, Mainz, Darmstadt, Hamburg and Munich.

He was awarded among others the following prizes: Hamburger Leserpreis 1967; C.F.Meyer-Preis 1968; Hermann Hesse-Preis 1974; Zürcher Literaturpreis 1984; Carl-Zuckmayer-Medaille 1989; Ricarda Huch-Preis 1993; Georg Büchner-Preis 1994; Int. Vilenica-Literaturpreis 1995; Premio Antico Fattore (Florence) 1995; Grimmelshausen-Preis 2001; Bundesverdienstkreuz 2004.

References: personal website Adolf Muschg, http://adolfmuschg.com/lebenslauf, (translated by editor)

For further informations, other works, voice recordings, literature and external links in the biography in wikipedia:  de.wikipedia.org/wiki/Adolf_Muschg

[Economic Law?]

a) Background

The text at hand appeared in the Festschrift for Professor Roland von Büren of the University of Bern in 2010. The text is a timely review of the role of the originally German concept of Wirtschaftsrecht (economic law) and a close look at the "traveling" of leading American concepts of law, such as the economic analysis of law, to the continent of Europe and Switzerland. The question mark in the title indicates a critical perspective on the feasibility of the creation and use of systematic definitions in law in times of dynamic and complex societal and economic developments. The Leitmotiv of the later justice of the American Supreme Court Oliver W. Holmes in the essay The Path of The Law in 1897 evokes the German theoretical concepts of Wirtschaftsrecht in Switzerland: "For the rational study of law the black-letterman may be the man of the present, but the man of the future is the man of statistics and the master of economics".

Peter Nobel is an emeritus Professor (2010) in Private, Commercial and Economic Law at the University of St. Gallen and a Professor of Law at the University of Zurich. He is a leading attorney and has experience as a judge at the commercial court of the Canton of Zurich and as an official in the former supervisory Commission of Banks. He is a prolific writer of legal texts, organizer of academic conferences and editor-in-chief of the Schweizerische Zeitschrift für Wirtschaftsrecht (Swiss Journal on Economic Law).

b) Summary

The text of Peter Nobel opens with a reflection on the relationship between government and economics, which time and again has eluded dogmatic definitions. The primary relationship between law and economics is that the economic knowledge always relates to law because the purpose of their factual statements and observations is always to serve as the basis for the adequacy of the legal order in force.

The text describes the historical steps taken by major legal scholars in Switzerland to develop the concept of Wirtschaftsrecht (economic law). With regards to the mutually interdependent fields of law and economics, scientific analysis did not go beyond an interested and friendly coexistence. This changed substantially with the opening of academic culture to developments originating in the United States.

The development of the thinking of the major Swiss academic proponents led to a gradual merger of legal and economic considerations, particularly after the advent of functionalism. An important factor for this merger was that the economists became more and more dissatisfied with the legal developments. This in turn, according to Peter Nobel, led to an attempt for a more realistic approach, where legislation requires economic rationality as a guiding principle (Leitplanke) and that legislation should not lead to closed systems negatively influencing the constant evolutionary selection of better possibilities.

The second part of the text deals with the effects of the American law and economic movements on law. As a leading American school of thought, economic analysis of law became a full-fledged academic discipline, which in turn led to it being fully integrated into the curricula of most leading American law schools Peter Nobel refers to Judge Richard Posner's saying that "there is no dispute that law and economics has long been and continues to be the dominant theoretical paradigm for understanding and assessing law and policy." The text describes the method and primary goals for integrating law and economics and then analyzes the remarkable development, which led to a contested acceptance of economic analysis of law in Germany. Peter Nobel criticizes the defensive arguments to limit the effect of economic analysis of law in Europe.

Advocating a less theoretical but more pragmatic and modern approach, Nobel concludes that basic economic knowledge is essential for a lawyer; that legal positions have to be analyzed with respect to their economic feasibilities; that the free markets in a rule-based system are likely the most efficient motors of development; that pragmatism is a useful philosophy in law; and that economic freedom is the best precondition for the safeguards and the corrections of markets.

c) Text

You can find a scan (PDF) of the original text here:
A_2.40_NOBEL_Wirtschafstrecht

a) Background

The text at hand is based on an oral presentation held in a private circle in Basel in 1993. It later appeared in written form in Liber Amicorum for Thomas Bär and Robert Karrer, the International Practice of Law in 1997. Thomas Bär and Robert Karrer are the senior partners of a leading international law firm in Switzerland. It is significant that this Liber Amicorum on the topic of the international practice of law has been published by an international law firm that has been at the forefront of addressing, living and working with the issues of the Americanization of Swiss law and legal culture. The list of authors of the Liber Amicorum comprises of an international network of prominent practitioners from all over the world.

Peter Böckli is an emeritus (2001) Professor of Law at the University of Basel and an eminent attorney in tax and corporate law with an international reputation. Besides practising in leading cases, he has consistently published on the forefront of developments in economic law mainly in tax and corporate law. His texts are authoritative treatises as well as practice-based law review articles and manuscripts of lectures. Böckli has also been a board member of important listed companies and advisory functions for legislators; he has a broad and in-depth experience in actual developments in the economy and correspondingly in law and legal culture and is a keen and sharp observer thereof.

b) Summary

The title Osmosis of Anglo-Saxon Concepts in Swiss Business Law shows three interesting points of reference. Under the umbrella of the topic of Americanization, Peter Böckli talks not about American but Anglo-Saxon concepts. He refers to a generalized focus on business law and he identifies a process of exchange of two legal systems by using the metaphor of Osmosis. Böckli wrote regarding the phenomenon of Americanization in 1997 that this process goes far beyond a mere fashionable trend or a superficial takeover of English business jargon amounting in fact to evidence of a "change of paradigm". The framework of reference is shifting fast, and new legislative priorities are displacing old ones in this dynamic process.

Under the heading 'the first wave: French, Anglo-Saxon and German influence', one finds the remarkable statement, that it would be unrealistic to deny a simple fact: Switzerland was under the constant legal influence of the dominant powers in every single instant of its recent history. When Napoleon's troops occupied Switzerland in 1798 the Swiss legal system was renewed, even turned upside down, to an almost unfathomable extent, particularly business law. After the German victory over France in 1871, even more lasting marks were left by the laws of Bismarck's Empire in the area of commercial law. Before this German phase, the strong Anglo-Saxon influence on the organization of government and constitutional law in 1848 was obvious and dominant; the unitary state dictated by Napoleon, changed the idea of a parliament with two chambers, while the idea of a national government and a structural federal state was evidence of American influence on constitutional law. A British influence on industrial law can also be observed in certain early industrialized Cantons by introducing industrial labour law.

The text characterizes the third wave as one of American influence and specifically deals with examples of the Osmosis of Anglo-Saxon legal concepts into Swiss law. Among those concepts are the Insider Dealing Law of 1978, the Stock Price Manipulation Law of 1987, the Stock Ownership Notification Requirement of 1991/1995, the Take-over Regulation of 1989/95, the Fast Transfer to Foreign Authorities of Swiss Security Market Information in 1995, the Consolidation of Corporate Accounts under IAS Standards of the 1990 and the Swiss Cartel and Antitrust Law of 1995. In the conclusion Böckli states that there is no doubt that Switzerland is generally heading more and more in the direction of Anglo-Saxon and, more often than not, American concepts. Because of a complex parliamentary process and the traditional political practice of compromise, the results usually reached are  watered down pragmatic solutions. But according to Böckli every single relevant point is originally taken from abroad.

c) Text

You can find a scan (PDF) of the original text here:
A_2.37_BOCKLI_Osmosis

a) Background

The text is an oral transcript by Jens Drolshammer paraphrasing a lecture of Heinrich Koller with the title Die Amerikanisierung des Schweizerischen Rechts - Beispiele aus der Gesetzgebung, which Koller gave in an inter-university seminar  between the Universities of Zurich and St. Gallen in 2007. The whole seminar has been summarized, put in perspective and reported on in detail in a text by Jens Drolshammer "From the Horse's Mouth", Rechtsberufe am Wind der Amerikanisierung (legal professions sailing at the wind of americanization), which has been published in Jens Drolshammer, A Timely Turn to the Lawyer? Globalisierung und die Anglo-Amerikanisierung von Recht und Rechtsberufen-Essays in 2009. The inter-university seminar dealt with the impacts of and the handling of American legal culture by general counsels of Swiss multinational enterprises, by internationally active attorneys, legal administrative and regulatory officials, and by courts in Switzerland and in the European Union. Leading representatives of these legal professions were asked to answer two questions: How are you affected by American law and legal culture in your working environment in Switzerland? How do you deal with it?

In the subgroup of administrative and regulatory officials, Koller was the lead and keynote speaker; he had just retired from the directorate of the Federal Office of Justice of Switzerland after 20 years of service. He summarizes from his many years of experiences salient features of the topic of Americanization of Swiss law and described particular examples of the legislative process.

The text of Jens Drolshammer, "From the Horse's Mouth"- legal professions sailing in the wind of Americanization (pages 275 - 288), gives the most recent and the most complete overview of and insight by leading Swiss professionals in the four areas of legal professions. The legal experts being personally present and arguing their cases and views in front of the students and vis-à-vis with their colleagues had the advantage and the special didactic force of immediacy of oral communication in raising awareness and the interest on the subject of "trends to Americanization of Swiss law and Swiss legal culture".

Heinrich Koller is an Professor Emeritus of Law at the University of Basel. In 1999 he was named the Director of the Federal Office of Justice of Swiss Government and was active in that function for almost twenty years. He was responsible for the preparation of the process in all areas of law and legislation, the legal consulting of the Federal Council and the Parliament; the supervising of the law making of the execution of the Federal Laws by the Cantons; and the representation of Switzerland in international organizations.

b) Summary

In the published oral transcript of Heinrich Koller's presentation he drew the attention of the participating experts and students to the following areas.

In the introduction, he explains the Legal Office of Justice's function as the specialized institution for legislation of the Swiss government; it prepares and handles legislative projects and processes, accompanies other departments and administrative agencies in their legislative projects as a consultant, and represents the Swiss government in international organizations such as Hague Conferences, UNCITRAL and Unidroit. The Federal Office of Justice is also the principle interface in international legal assistance, which brings immediate and direct contact to American law and its officials. Koller explains in the text the increasing influence of international political developments and events and the increasing influence of international law.

With regard to the Europeanization and the Americanization of Swiss law, Koller has given innumerable public presentations and has written scientific texts including in the part on globalization Globalisierung und Internationalisierung des Wirtschaftsrecht - Auswirkung auf die nationale Gesetzgebung (Globalization and internationalization of economic law - impact on the national legislative process).

Through his trend analysis he highlights that the adaptation of Swiss law to international developments in the past twenty years has come about not gradually but in clear shifts and steps. The development is not only marked by the accelerated change of quantity but also by the change of quality of the international legal developments to be dealt with. The text describes the role of international organizations, which beyond more familiar legal systems bring about even more complex influences on the Swiss legal system. The text explains the reasons behind the growing, sometimes hegemonic position of the United States and the sometimes difficult emotional conditions of the reactions on the Swiss side.

Koller explains the direct influences of American law by the exterritorial application of American law for instance by highlighting various cases. Under the heading of indirect influence he explains the Americanization of Swiss law as it appears in capital market and corporate law, the supervision of auditing firms, corporate governance, capital structures of corporations, procedural law in general, and legal procedures in civil and in criminal law, always highlighting the most direct encounters and sometimes confrontations between Swiss and American law.

The text really is a tour d'horizon from the horse's mouth of the highest legal official on the process of legalization.

c) Text

You can find a scan (PDF) of the original text here:
A_2.38_KOLLER_Amerikanische Rechtskultur

[The significance of US-American law and legal culture of the common law in the practice of Swiss courts – The example of the Swiss Federal Tribunal]

a) Background

The text is a scientific article that appeared in “Archiv für Juristische Praxis”. It is a written version of an oral presentation in an interuniversity seminar between the universities of Zurich and St. Gallen (see above text 3.16). It is entitled “From the horse’s mouth – legal professions in the winds of Americanization.” How are general counsels of Swiss multinational firms, international attorneys, regulatory officials and courts in Switzerland and in Europe affected by American law and legal culture, and how do they deal with the effects at their workplaces in Switzerland?
The Federal Tribunal has a longstanding tradition of openness to foreign law and of making use of foreign laws in its decisions. In the post-World War II era and in times of globalization new forms and new types of influences of international legal developments became a reality for Swiss courts. According to justice Aemisegger, Anglo-American law has had an intense and lasting influence on continental laws and Swiss law and legal culture in the past. The inspiration, influences and impacts of American legal thought actually happened directly by US-AUS-American law, partially indirectly through the reception of foreign or international law, which has been influenced by US-American law and legal culture. Economic and military power has underpinned this process. In the past 30 years the influence of the European Convention on Human Rights for instance has been particularly strong. The Convention and its application by the European Court of Human Rights in Strassburg are, according to Justice Aemisegger, influences and impacts deeply rooted in Anglo-American legal thinking. A further direct influence is the formation of the Criminal Court of Justice in The Hague whose rules of procedure are heavily influenced by Anglo-American law. This is also now evidenced in the new Federal Rules of Criminal Procedure of Switzerland. According to justice Aemisegger the Federal Tribunal regularly deals directly with US-American law. The statistics of the cases published on the internet in 2007 under the key words “United States-Switzerland” has shown in the years between 1954 and 2007, 1953 precise and 1999 partial hits. The same search under the search word “judgment” since 2000 shows 165 direct and 1083 partial hits for judgments that have been rendered with a close connection to the United States.
Heinz Aemisegger is a Justice of the Federal Tribunal, the highest court in Switzerland. He was a vice president between 2001 and 2002 and the president of the court from 2003 and 2004 in the court’s rotating system. Heinz Aemisegger is a known as an active justice who communicates with the professional and the academic community.

b) Summary

At the outset Heinz Aemisegger states that the obvious similarities between the US-American and the Swiss traditional legal structures lead to the handling of substantive issues in a similar or the same way therefore making a comparative law approach an attractive proposition. The text mainly deals with the indirect influences of US-American law through the application in Swiss courts of the European Convention on Human Rights, the principles of fairness being in the foreground.
Aemisegger shows that the different historical roots and the different attitudes of the traditional systems vis-a-vis the principle of freedom of information in government (Das Öffentlichkeitsprinzip) and the privacy in personal matters become evident in the judgments of the European Court of Human Rights, which in turn has a direct influence on Swiss courts. The text deals with the judgment in the Caroline of Hannover case between the German constitutional court and the European Court of Human Rights as an example.
The text carefully analyzes the influences of US-American law on the Freedom of Information Act of July 2006 and on the now enacted new Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure with regard to the court proceedings. Article 13 subtitle 3 of the Swiss Constitution states that court proceedings are public, which is influenced by the European Convention on Human Rights, that is by United States law for instance in connection with the comparison between prejudicial effects of judgments in both jurisdictions. Both systems lead to a binding and prejudicial effect of the court decisions. Based upon this observation, Aemisegger traces the influences of the United States law on the principle of freedom of information in government (Öffentlichkeitsprinzip) of Switzerland. The US practice of publishing court decisions has greatly influenced the handling of these issues by the Federal Tribunal. Since January 2007, the Federal Tribunal has published all decisions on the internet. The leading cases are published in the official journal “Decisions of the Federal Tribunal”.
In the areas of “fairness in proceedings” a marked contrast is that Anglo-American court proceedings use oral pleadings. In areas such as the requirement that decisions should be made by judges in the area of avoiding double functions of judges in proceedings and in the area of the right to a public hearing. Both examples are clear evidences of indirect influences through the Convention of Human Rights by Anglo-American legal culture in everyday life of the Federal Tribunal of Switzerland.
The most recent examples of adaptation in connection with terrorism financing are the principle of acceleration (Beschleunigungsgebot), rights for counsels, rights to the access to the files in pending proceedings, “Miranda Warnings” and actual refusal to testify. In international legal assistance in criminal matters recent changes in American laws have led to critical points of contact.
Since the English language has become the “lingua franca” of international legal matters, justice Aemisegger at the end of the text shows that the Federal Tribunal has enough language capabilities and English speaking lawyers to cope with those issues, despite the fact that English is not an official language in Switzerland.

c) Text

You can find a scan (PDF) of the original text here:
A_2.39_AEMISEGGER_Bedeutung

a) Background

The text at hand is the first chapter of leading treatise on fundamental rights in Switzerland, first published in 1970. Peter Saladin, who was later a Professor at the University of Bern and died much too early in 1997, wrote the text during post graduate studies in comparative law at the University of Michigan Law School. It is not a coincidence that the book begins with a chapter on freedom of religion. First, it was dear to Saladin and his personal faith. Secondly, freedom of religion both has been a constituting freedom in the United States and in Switzerland, albeit shaped by a very different history. While freedom of religion has been a mainstay in US constitutional law restricting state intervention, it was subject to stronger governmental involvement in Switzerland in the wake of the reformation, state religion and the expulsion of Christian minorities. The chapter expounds the history of religious freedom in Switzerland, showing that it was largely subject to governmental control and limited by law. Art. 44 of the Swiss Constitution of 1848 introduced a formal guarantee of freedom of religion. Yet, subsequent case law continued to be coined by the tradition of faith defined by public authorities (Staatskirchentum), allowing for substantial restrictions of freedom of religion. It is at this point that Saladin refers to the case law of the United States Supreme Court, arguing in favour of the compelling interest test and thus stricter requirements to be met for governmental restrictions of freedom of religion in Switzerland. The chapters stands as an example of a then increasing influence of the case law of the United States Supreme Court to which Swiss authors would look for guidance in shaping the body and system of fundamental rights protection in Switzerland at the time. It should be recalled that prior to World War II, human rights protection was less prominent, and gained prominence and profile during the 1970s and 1980s when the Swiss Federal Court recognised implied protection of human rights under constitutional law. Saladin was instrumental in bringing about enhanced protection, together with the writings of his Berne colleague Jörg Paul Müller. They pioneered what eventually became the catalogue of fundamental rights in the Federal Constitution of 1999. The influence of US constitutional law was strong in this and the subsequent generation of leading lawyers, many of whom had been exposed to US constitutional law during their studies in leading US Universities. Walter Haller dedicated a full monograph to United States constitutional law, explain the functioning of it to European readers. US constitutional doctrine and teaching also influenced methods of teaching. It is in the field of fundamental rights that in that period, teaching by way of case law became prominent, narrowing the gap between the traditions of civil and common law. Peter Saladin was educated at the University of Basel a predominately protestant city. Upon return from the Unite States, he held governmental positions before taking up a professorship in Basel and eventually becoming a Professor of Public Law at the University of Berne. His main focus, besides constitutional law, were principles of administrative law and federate structures. He was among the first to address ecological concerns and the impact of globalization publishing a provocative book discussing the allegedly increasing redundancy of states (Warum noch Staaten?  in defence of the nation state.

b) Summary

The text at hand is a chronological analysis of the cases of the Swiss Federal Tribunal as regards to freedom or revision. The analysis is a part of an overall and bottom up analysis of the evolution of constitutional fundamental rights in post World War II times, it is strongly inspired by conceptual cases of supreme court of the United States.

c) Text

You can find a scan (PDF) of the original text here:
A_2.41_SALADIN_Religionsfreiheit

This noteintroduces you to choice of vertical (the Erie doctrine) and horizontal choice of law. I should warn you that along with the "arising under" material and preclusion, I think this is the most intellectually challenging aspect of the course. Therefore, do not be surprised if you find this hard... it is hard!

You may want to delay reading the portions on horizontal choice of law till we actually get there in the course.

Consider this hypo:

Hypo VIII-1: John Gage (residing in Boston, MA) sues Diana Murphy (residing in LA, CA) for $1,000,000 for breaching a contract that they made in California - Murphy offered Gage 1 million dollars for "one night with your husband" to be enjoyed in Boston. Gage agreed, Murphy has her night of passion, but Murphy did not pay. Murphy has a defense that the loan violated California law against the enforceability of meretricious contracts, but under Massachusetts law such contracts are enforceable. Murphy lives in California and visits Massachusetts once a week. In which of the following courts can the suit by brought: the federal court for the District of Massachusetts, the federal court for the Central District of California (covering LA), Massachusetts state court, or the California state court?

Its answer - relating to SMJ and PJ - does not address a further question: what law will apply in any of the courts in which it can be brought?

In fact, there are two sets of questions. First, assume the case is brought in federal court. Will the federal court apply federal law or state law? In fact, as we will see, to some elements of the case the court will apply federal law and to some state law; sorting out which is the function of vertical choice of law, more commonly known as the Erie doctrine.

Second, suppose he can sue in Massachusetts state court. Will that court apply Massachusetts or California law? This is a question of horizontal choice of law. This is an extremely complex subject, of which I will only give you a small taste in this course - it is covered in more depth in some of the 1L international courses and Prof. Singer teaches an upper year course devoted to the subject.

Indeed, life gets more complicated. Suppose he sues in Massachusetts federal court. Now we have both a vertical and horizontal choice of law question combined. On what issues will the court apply state law rather than federal law? As to those issues does it apply Massachusetts or California state law?

We will try to take these issues one-by-one.

I. Vertical Choice of Law, more commonly known as the "Erie" doctrine

In this portion of the course, there are a few main questions we will try to answer:

How much of this issue is controlled by the U.S. Constitution?

How do you determine which issues to apply state law to and which issues to apply federal law to (we will spend most of our time on this, there is a progression of cases from Erie on)?
NOTE: I will save the Supreme Court's most recent Erie case, Shady Grove, for later in the course when we do class actions because it will be incomprehensible wihtout understanding a little about class action law.

If a federal court determines it needs to apply state law on an issue of a particular state - say Massachusetts - how does it determine what the law of that state is?

II. Horizontal Choice of Law

Much of the common law first year subjects (contract, property, torts) are devoted to teaching you about the conflicting case law on particular subjects between different states. In torts, does the state recognize negligent infliction of emotional distress as a tort? Does the breach of a contract get you consequential damages (Hadley v. Baxendale)? Therefore, states frequently disagree. As a result, it will be important to know which state's law to apply.

The early approach to this issue in the U.S. was encapsulated in the Restatement (First) on Conflicts of Law (1953) approach. It had different rules for different common law subjects, but for torts the rule was: look to law of the place of the wrong. What does that mean? "The place of the wrong is the state where the last event necessary to make an actor liable for an alleged tort takes place." At the same time, the Restatement instructs that: "All matters of procedure are governed by the law of the forum."

We will use the Alabama Great Southern Railroad Co. v. Carroll case to understand how this Restatement (First) approach worked. We will also use it to explore the approach's theoretical underpinnings, and understand why many became disenchanted with the approach (though it is still in place in some states).

We will then explore the more modern, interest-balancing approach to choice of law encapsulated in the Restatement (Second) on Conflicts of Law. The case we will use to show the operation of this approach is Schultz v. Boy Scouts of America. I warn you the case is extremely complex. I use it in part because of the complexity, to show you how much more standard-like the Restatement (Second) approach is. I do not, however, expect you to master the Restatement (Second) approach. That is what the upper-year course is for.

Instead I just want you to get a feel for it, and its benefits and drawbacks over the Restatement (First) approach.

Herbert Lüthy was a Swiss historian and author. He belongs with Carl Jacob Burckhardt, Jean Rudolf von Salis and Karl Schmid to the prominent personalities of intellectual life in the German speaking part of Switzerland in the second half of the twentieth century.

Lüthy was born in 1918 in Basel, the fifth son of the India-missionary Ernst Lüthy-Dettwyler. He studied history, Romance languages and French literature in Paris, Zurich and Geneva. He obtained his doctoral degree in 1942 with Hans Nabholz in Zurich. After that Lüthy published widely in economic history and in journalism.  From 1946 to 1958 he worked as an independent publicist and historian in Paris. After his habilitation in 1958 he was named Professor for General and Swiss History in German Language at the Swiss Institute of Technology in Zurich. In 1971 he continued as a professor at the University of Basel, where he was active until he was emerited in 1980. Afterwards among others he was a member of the board of the association editing Schweizer Monatshefte (Swiss Monthly) in which, since the sixties, he had published various essays including "Die Schweiz als Antithese" (Switzerland as antithesis) in 1961. Lüthy was honored many times for his eminent achievements. He died in Basel in November 2002.    

From 1942 to 1944 Lüthy, among others, wrote the weekly chronicle of World War II for the "St. Galler Tagblatt." In his years in Paris he was the correspondent of the newspaper "Tat" twice in a year; since 1949 he wrote more and more for international publications ("Der Monat", Berlin, "Preuves", Paris, "Encounter", London, "Commentary", New York and others). In 1954 he published the book Frankreichs Uhren gehen anders (The watches of France tick differently), which became the most important foreign-written publication in post-World War II France. He was well known in German cultural life for his translations of a selection of essays by Michel de Montaigne (1953). During 1959 and 1969 his two volumes, Banking and in History of Banking and Finance La Banque Protestante en France de la Révocation de l'Edit de Nantes à la Révolution (1685-1794) were published, and became a book of reference.

His written work was edited, introduced and commented in seven volumes.

Litertature on Herbert Lüthy see: http://www.herberthluethy.ch

References: http://www.herberthluethy.ch

I. Thomas Cottier & Jens Drolshammer, Anthology of Swiss Legal Culture, General Introduction

I. Purposes and Goals 

The Anthology of Swiss legal culture offers a collection of relevant texts made available in the original language or in English translation, providing contextual background. The very purpose of the project is to make these texts available to a wider community of legal scholars and practising lawyers on line. Swiss law is mainly dealt with in German, French and Italian, and much of it thus remains not accessible to the World at large. Many do not have access to the rich legal tradition of federalist and democratic Switzerland with its legal institutions strongly embedded in continental European tradition, but also with its succinct institutions rooted in direct democracy and a long standing communitarian tradition. We hope that the collection will facilitate access to those taking an interest Switzerland and her legal culture and particularities beyond black letter law and the law on the books. The collection offers insights into contributions originating in this country to legal developments in general. This angle is predominant up to World War II. Up to this point in history, there was a remarkable influence on the foundations of public international law. Switzerland, the first multilingual federacy and democracy largely modelled upon the US Constitution and given its geographical location in the middle of Europe, was strongly exposed to international relations and was able to develop and active role in the early days of the Republic. It offered a model for European Integration. At the same time, Switzerland ever since was exposed to foreign legal culture, in particular German, French and Italian, based upon shared precepts of Roman law.

Overall, these influences have been strong. The collection thus mainly offers insights into the reception of developments and trends originating abroad, both in Europe and the United States in the process of Europeanization and Globalization. It is predominant angle in post-World War II developments. It informs  a majority of texts. The selection of texts was a difficult one. Firstly, we have been seeking for seminal texts which have been of lasting impact and influence to legal and political developments. Such texts obviously are not numerous, and impact assessment anyway is not established in the field. Many of the texts, including our own owns, serve the purposes of informing the reader on legal developments, emerging ideas and concepts which formed part of the debate at different stages of legal developments and the legal discourse relating to Switzerland. We hope that the collection will assist scholars in all the field of humanities, in particular law, political science and history, in better understanding Swiss legal culture with its intricate linkages to European law and strong exposition to international law in a country open to economic globalization and keen to maintain its own identities and culture at the same time.

Yet, our ambition goes beyond this point: the law in Switzerland and in many other countries in Europe is by and large still or again taught and dealt with at Universities and Law Schools in the positivist tradition. Students are exposed to the codes, the statutes and regulation and to case law of the courts. The emphasis mainly and often is on the rules and their impact, and less on underlying motives and where these particular rules do come from. Legal history and inquiries how ideas travel no longer plays the role it had in explaining the advent of the codes and of modern constitutionalism. Philosophy is relegated and hardly relevant in passing the bar exam. The focus, in these exams, is on positive domestic law and knowledge. Much less attention is paid to the underlying sources and trends which brought about these rules, both of domestic and foreign origin. Much less attention also is paid to the realities of the law, underlying problems and challenges and how these relate to other disciplines, in particular economics, political science and history. Empirical research and linkages to economics and political science are still in their beginnings.

Much less attention also is paid to international law and even European law as these subjects are considered of a lesser relevance in daily life and practical work. These tenets also coin the life at Swiss and other European Lasw Faculties. Students lack access to texts which help them to understand the influence, both domestic and foreign, and which inform the genesis and the life of the law. In particular they often fail to be exposed to the influence of, and on, other legal orders, in particular the impact globalization and Europeanization of domestic law. They fail to be exposed to the influence of international law, in particular international economic law on domestic law, either directly or indirectly. But they  also fail to realise the impact of Swiss law on other legal orders, or the impact of these other orders on Swiss law. Yet, all these factors constitute and compose what we call legal culture: the underlying motives, the people and actor, the relevant institutions and how they work in day to day operations. To put it in metaphorical terms, it sails under the flag of the eminent American lawyer Karl Llewellyn: "see it fresh - see it whole - see it how it works". The specific features of thought and action in legal processes are often dependent at the meta-level on a specific mind-set open to globalization, which applies a motivational position that favours the exploration of the legal process in globalization and a motivational drive inspired by curiosity. "See it fresh" challenges us to see it in an open, undisguised and new way. "See it whole" means we should see it impartially and holistically. T, and - this is key to the whole text oriented and text based approach issue.  - "See it as it works" calls on us to understand the functional requirements and operation of the legally relevant social reality in the process of globalization, internationalization and Europeanization of Swiss law. The collection makes a modest attempt to fill this lacuna.

 II. Basic Structure

The Anthology is conceived in a manner that scholars and students may easily find relevant texts the relevant background and information on authors. Introductory texts facilitate access and understanding, and summaries are available for the readers not familiar with the full text which is attached in the form of PDFs. All the texts are reprinted as original texts including the footnotes and lists of literature, in general "full texts", in a few exceptions "excerpts". Internet and the modern data bases offer new possibilities which will revolutionise education and work with materials. It also allows subsequent addendum and expansion of the Anthology. As we go along, new texts will be added with a view to assess the contribution of Swiss law and legal culture, and corresponding foreign influences, in the different branches of law. The Anthology attempts to enrich and combine the core of the texts with areas and layers of knowledge accessible and complimentary tools such as additional bibliographical information and detailed biographies of the authors. In order to raise the awareness of and to increase the accessibility dealing with the of the processes under discussion herein, the Anthology uses various tools to situate the texts found, such as a process adequate table of contents with a specific substructure, a standardized presentation and explanation of the texts with short comments under the headings of introductory chapters offering background and asummary. The Anthology offers  non-footnoted general introductions using comparable table of contents. To some extent, these various tools attempt to compensate, and to same extent offset, the lack of coherent and conceptual scholarly analysis of the processes described and used as a driving force of the evolution in particular of the post-World War II period up to today.

The Anthology thus serves non-Swiss as well as Swiss users.. It is not limited to lawyers, the holistic approach proposed and the state-of-the-art-interdisciplinarity advocated should interest persons from other academic disciplines. Various texts are addressed to legislators, judges, legal and government officials as well as practitioners and cater for interests of various legal professions. We hope that they all may develop an interest and benefit from the texts and comments included.

III. The Selection of Texts

The working hypothesis for the Swissness of the selection of the texts in the Anthology can be characterized succinctly as follows: we do not use dogmatic and rigid selection criteria. The majority of the texts deal with Swiss law and legal culture. This means that the texts describe and analyse complimentary processes from different perspectives:  the "travelling" from and the "impacts" of Swiss law and legal culture outside of Switzerland, or, as is the case  - with  in the majority of the texts  - the "travelling" to and the "impacts" on Swiss law and legal culture in Switzerland. In the absence of accepted concepts of "culture" in general and "legal culture" in specifics and with a curious mind we include some special cases of attribution of Swissness of the texts.

With a few exceptions, the texts were written by Swiss based or related authors. A minority of texts are official documents such as documents of the federal administration, court judgments or expert opinions. Law professors have written the majority of texts in the parts on international law, Europeanization as well as Globalization. A remarkable number in the part of Americanization have been written by practitioners, some of them having or having had double careers in academia and in practice.

IV. Bibliographical references

It is an important function of this Anthology to institute a platform of knowledge for further information and research, and hopefully we hope it will find its proper and interested users. The general bibliographical references are an important supplementary element of the Anthology. They convey a platform for further information and research. The texts included in the Anthology are of course footnoted and contain specific lists of literature.

V. Biographies of authors

There is no law and legal culture without lawyers. The biographies contained in the Anthology show the backgrounds, educations, professional activities and visions of the authors writing the texts in the Collection. The biographies moreover contain a series of contextual elaborations and short descriptions of authors' further works. of the authors and are of help means  of when possible, websites by their use ofand links are provided to access further information about the authors.  The biographies are an integral to the anthology's intended functionality and have been included as valuable, knowledge-generating tools.  The detailed biographies of all the authors are an invaluable source of various aspects of the personalities involved in describing and analysing the processes of Swiss law and Swiss legal culture. Every text should be read in conjunction with the respective biography which is readily accessible by a link to the text. The Anthology attempts to apply a certain homogeneity and comparability for all biographies concerned. A number of biographies nowadays - the sources are identified - are Wikipedia based biographies. Some biographies were submitted by the respective author.

VI. Work in Progress

The Anthology is work in progress. It is the result of a long and tedious search for factual and textual evidences of the contribution to international law and the processes of Americanization, Europeanization and Globalization of that have shaped Swiss law and legal culture.  The result is patchy, unsystematic, incoherent and incomplete, At this stage, we have been focusing on the role of Swiss legal culture in the formation of public international law throughout different periods. We focus in particular on developments since World War II which brought about watersheds of changes with the breakdown of nation states and the emergence of European integration and law. We equally focus on the underlying relationship of Swiss and US law and the impact the latter had, often disguised, on Swiss law in recent decades. We focus on the process of globalization and how Switzerland and Swiss law and legal culture have responded to these challenges. We hope to add additional clusters in due course on history of law and comparative law, constitutional law, private and commercial law, penal law and private international law including international arbitration. We hope that the present collection encourages young scholars to take up these topics and join the legal culture club out of which this project emerged. The website offers possibilities for interaction and participation. We hope encouraging others to join in and contribute to the body of texts included in the Anthology in due course.

VII. Supporting Teaching,  Research  and Interoperatibility

The Anthology thus is a tool for further work and academic endeavours in teaching and research. It offers the possibility to engage students in discussions on seminal and informational texts underlying and influencing legal developments beyond positive law. It allows for easy access and sharing of information. It offers facilitated access to texts also for the purpose of research. It allows taking into account appropriate texts in research. And foremost, we hope that it will encourage scholars and practising lawyers to engage in their in the search for comparable texts in their respective fields, which could be added to the Anthology as a living process.

In using the Anthology, readers should have an open, untraditional and non-elitist mind-set. We are dealing with modern methods of knowledge generation and knowledge management. It would be by far too narrow to view and judge the Anthology merely from a perspective of  a traditional collection of texts. Using metaphors, the Anthology is a contribution to the weaving of a complex carpet tapestry of cultural encounters and cultural exchanges in law and legal culture. The Anthology situates the texts found as objects trouvées in their broader context from a dynamic and evolutionary perspective in particular in dealing with the emerging new world order after World War II. The Anthology thus attempts to increase the awareness and the accessibility of legal and cultural knowledge and caters to a variety of potential uses common and state of the art to modern knowledge generation and knowledge management.

The Anthology has in mind the idea and vision of a college of internationally-minded lawyers. and their networking potential. The Anthology may assist in bringing about comparability of different legal orders and common backgrounds, assessing differences and commonalities in legal cultures. It may provide insights, to some extent, into the competitiveness of different legal orders and cultures and how they interface and fare. The recent Swiss experiences made in interacting with US law in the context of financial services demonstrate the need for enhanced and better understanding of different legal cultures. These experiences show that it is important to look beyond black letter law in order to anticipate and assess the potential impact of foreign law. The Anthology may thus make a contribution to a better understanding of the underpinnings of the Swiss legal culture and thus to the interoperability of Swiss law with other legal orders. This is important both in practical terms as well as from an academic point of view.

In conclusion, the Anthology is meant to be a starting platform of knowledge as a particular mis-en-scène of the legal dimensions of the historic process. It is meant to contribute to access, open up and to establish a Denkraum" (Aby Warburg) for further academic and practical legal work. The Anthology does not pretend to present a theory or a theoretical framework of structured sets of information. It is a mere organized aggregation of information and has the mere and primary function of a tool facilitating further observations and analysis of the topics and therefore is situated in the toolboxes of "skills." It does not claim to belong to traditional positivist legal scholarship which tends to ignore the relevance of public international law and obviously obviously missed some - or many? - of the boats in the early - and timely - observation and analysis of upcoming dramatic and far-reaching changes of the legal process of internationalization and globalization in Switzerland.

II. Jens Drolshammer, Swiss Law and Legal Culture and the process of Americanization, Foreword

1.     Basic information on the project

Beyond the General Introduction to the Anthology on Swiss Law and Legal Culture, which the general-editor's worded, the following information may be of help for the user and reader regarding the parts on the process of Americanization, Europeanization and Globalization.

The origin of the project of the Anthology on Swiss law and legal culture lies in the Legal Culture Club, an institutionalized venue of internationally minded law professors, which regularly meets and discusses legal matters of mutual interest at the home of Jens Drolshammer. The original members associated with the project were professors Daniel Thürer, Thomas Cottier, Wolfgang Ernst, Thomas Probst, Cyril Rigamonti and Hans Ueli Vogt. The general project is an open project attempting to include several other relevant topics and fields of law in order to convey a balanced and holistic view on Swiss law and legal culture. Jens Drolshammer was the spiritus rector and - nolens, volens - the driving wheel of the project.

We start the work in progress with a joint venture of Thomas Cottier's part on International Relations and Jens Drolshammer's parts on the processes of Europeanization, Americanization and Globalization of Swiss law and legal culture, which cover key areas and forces shaping Swiss law and legal culture faced with the challenges of the internationalization of the world and of law. All three parts of Jens Drolshammer lead up to the presence. The part on Americanization covers the time period from the formation of the Union of the States of North America towards the end of the 18th century. The part on Europeanization covers the time before and after World War II and the part on Globalization the time after World War II and in particular, after the end of the period of the Cold War.

The selection and the comments of the texts have to be viewed on the background of the professional education and the work in academia and private practice in international matters for about 50 years of the editor. The editor has grown up and worked in post World War II and post cold war times and had a strong transatlantic focus with a continuing exposure to American legal practice and academia. The majority of the texts written after World War II and selected and commented had been authored – this only became evident at the end of the work – by friends, colleagues and teachers of the editor. In that sense, the parts on Americanization, Europeanization and Globalization present a "walk" through the professional life of the editor.

The project of an Anthology leaves little room for the personal mindset and thinking of the editor as an international lawyer. In order to arrive at the final selection of more than 100 texts, the editor had to peruse several 100 texts and read and comment about 200 texts. The number of pages of the texts or excerpts of texts included in the three parts is about 2300, the number of texts worded and collected by the editor is about 500 The selection and comments have yet to stand in professional discussion amongst colleagues and interested readers and users, if ever there is or will be time for that. The three texts are - although related – stand alone texts. They are based upon a rigidly applied identical concept of selection and commenting. The texts are reprinted in a facsimile manner in the electronic and the print version as well as they have appeared in the cited originals. They contain footnotes and bibliographical references. The texts are reprinted in the original language, in which the authors wrote the texts.

The majority of the texts are short stand alone texts; a minority are excperts out of longer texts, such as books and monographs. The sociology of the authorship and the languages used show, that the mainly Swiss authors more and more used the English language to write their texts and that hardly any texts have been formally translated. The comments, the biographical references and the biographies are completely worded in english, the lingua franca of present international discourse on the internationalization of law. Since the editor in private practice and in academia mainly has been involved and specialized in international matters and has lately specialised in the topic of Globalization and Americanization of law and legal profession he has frequently written on those subjects and therefore has included a few texts, which he penned himself. An important reason for that is, that the process orientation of the parts and the focus on the underresearched phenomenon of "how law travels" and "how law impacts" are not a traditional and accepted category of academic endeavours of which the editor never was a full member.

The parts on Americanization, Europeanization and Globalization on Swiss law and legal culture will simultaneously appear as a print and as an electronic version. This is based upon a conscious decision to conceive the totality of texts as a structured aggregation of information to be subjected to state of the art methods of knowledge generation and knowledge management at the forefront of communicating about law internationally. The online platform (to be disclosed later) was created using the open source software WordPress. The structure of the Anthology is reflected in the sites’ navigation. Each contribution is a separate site having a fixed URL (permalink) and includes a link to the original text which can be downloaded in PDF format. The whole platform is freely accessible and optimized for indexing by search engines (Google, Bing, etc.).

The main purpose of the electronic version is to facilitate the accessability and the usability of the information by an unknown group of potential users and readers. The texts of the three parts are therefore conceived as "tools", the merit of which will be brought to reality primarily with the actual uses. The style of the editors comments therefore are not literary or scholarly in a traditional sense. Because of the complexities of the topics covered, they rather are a structured and linked collage leading to and opening up a Denkraum (thinking space) (Abi Warburg). Some of the texts of the editor, as the introductions for instance, in that specific context are non footnoted descriptions and many of the texts of the editor in the subparts background and summary retain or paraphrase at times elements found in the biographies and in the texts of the authors themselves. The texts are to convey and breath a cosmopolitan air and are consciously and unconsciously linked by a holistic and generalist view of legal education, scholarship and practice, which the editor believes to be essential for thinking and particularly acting as an international lawyer nowadays.

2.     Key concepts applied

Beyond the general introduction of Thomas Cottier and Jens Drolshammer the following remarks concerning some concepts used by the editor in the parts of Americanization, Europeanization and Globalization, may help the user and the reader to better understand the approach used in order to accommodate the fact, that legal research has not yet dealt with the phenomena of Americanization, Europeanization and Globalization in a comprehensive and settled manner.

The editor used specific tools such as guiding principles, which are identical and essential to the three parts. These guiding principles although not yet delevoped and distilled in dogmatically accepted terminologies and concepts have a function of "generators" in the design of the texts of the editors.

The Anthology of texts for instance uses Leitmotive for the topic areas dealt with. The Leitmotiv of the Anthology of texts as a whole is "See it fresh - see it whole - see it how it works" by the American lawyer Karl Llewellyn. The part of the process of Americanization uses the Leitmotive "America does not exist", a title of a children story of the Swiss writer Peter Bichsel - and  "...and to define America and her athletic democracy", a statement of the American writer Walt Whitman in his work of poetry Leaves of Grass. The Leitmotiv of the part on the process of Europeanization is "Les Suisses se levent tot, mais se reveilent tard" ("The Swiss get up early but wake up late") by the Swiss visionary on Europe Denis de Rougemont. The Leitmotiv of the part on the process of Globalization is a statement "The World - but - I see you" by the Swiss artist Remy Zaugg conceived for a mural in a building of the federal administration in Berne, which was never realized.

Besides those overarching Leitmotive, the three parts sail under the flag of the metaphors "How law travels" and "How law impacts", using an analogy to a seminal essay of the literary critic Edward Said "How ideas travel" and "How ideas travel reconsidered". The content on this metaphor is open and methodologically not defined and settled.

The parts of the Anthology further use a modern concept of mindset and attempt to establish the notion of a "globalization adequate mindset".

The key notion of arranging and grasping the evolution of the travels of law in the respective areas is the making use of a process orientation of the selection and the description of the texts. This process orientation in the description of the legal process of Americanization, Europeanization and Globalization brought about a necessity to elaborate a frame work of reference of those processes in the individual introductions. The basic reason for that was, that the result of the extensive search were patchy and inhomogonous; moreover, the results showed that the processes as such have not been made part of a generalized, accepted and coherent analysis yet.

It is moreover key to the three parts Americanization, Europeanization and Globalization that they beyond law pertain to legal culture. Irrespective of the state of sophistication of cultural science and in particular legal culture, the texts of the editor use such a broader perspective. Although the parts of the Anthology are basically a text based Anthology, the texts therefore include wherever possible references to institutional environments and to individual lawyers as personal shapers of legal reality as essential parts of Swiss legal culture. Although any selection and any comments are unconsciously marked by subjectivity of the author and commentator, he attempted not to take a judgmental stand on some of the critical phenomenas dealt with in the texts selected.

3.     A look into the future

The findings and comments of the editor are a mere quarry of building blocks, which are to be further analyzed, described and understood and complemented in later studies, if at all. In that sense, the texts are a mere basis for the determining of an agenda for further possible research. This will be up to others.

We are speaking here of a thematic beginning and not an end. It is a first step to the more visible staging of Swiss law and legal culture - mise en scène - in the legal process of internationalization and globalization. We limit ourselves to make a playful reference to some passages of the valedictory lecture of the editor (see text 2.42 of the part on Americanization with the title The Global Groove of the Harvard Yard - Personal aspects of the person in the Globalisation and the Anglo-Americanisation of law and legal profession). The basis of the lecture was a collection of essays, which appeared in December 2008, in particular the long theoretical closing text "The path to a turn to the lawyers - American concepts and ideas for a blueprint to take it global", which the editor mainly conceived and wrote during his stays at Harvard Law School between 1999 and 2008. Regardless of the fact, that the editor attempted at that time to conceptualize a personalistic approach of a New International Lawyer, primarily by using American academic experiences, the specific treatment of that issue in the valedictory lecture might serve as an adequate and analogous methodological path for further conceptualizing and further research based upon the findings in this Anthology of the concepts "how law travels" and "how law impacts". It would be too easy a way out to just replace in the following statements and language sentences the key notion of personalized approach to a New International Lawyer by for instance Switzerland in the global legal process. Nevertheless the following statements and language sentences in the valedictory are in view of the editor useful and relevant to the task of whoever wants to deal as a scholar with the results of the Anthology. We take the liberty to advocate a playful use and development of methodological tools to approach future work.

As regards to the statements we cite from the valedictory lecture:
"These glimpses of the future requiring a targeted objective in the form of a vision are, in my opinion, another characteristic of American law and academic culture. This is not to advocate an old-fashioned romantic and nostalgic professionalism. Rather, it is about a forward-looking construction of a new and globalized virtual community of lawyers in international legal practice in the widest sense. Turning theory into reality means in this context developing a professional culture and a professional association that lives up to the name of a "Visible College of International Lawyers". Originally confined to international law, the college would become globalized by incorporating all relevant roles of the profession of New International Lawyer. These eight statements are about specific characteristics of American law and academic cultures that attractively influence the conceptualization and subsequent operationalization and make possible an understanding and discussion of this issue. This treasure hunt guided by the melody of Play Me the Song of Pan ultimately lead to the following findings and fragments from American legal and academic culture:

- Legal thought and action which are motivated by exceptional curiosity and openness, which are bottom-up and facts-and issue-driven, and which focus on legally relevant realities and are persistent in their observation and investigation - "see it as it works”. (1)

- The equally valid incorporation of "behavior' and "effect" alongside the "being" of legal actors - all embedded in a special connection between "knowledge" and "activity". (2)

- A conscious positioning on a meta-level, a deliberate choice of a global perspective and, associated with this, an implicitly academic discussion of globalization. (3)

- An understanding of legal practice as soon as possible after the event as a legal process, and a striving to tackle and describe change in this legal process as early as possible. (4)

- A situational and issue-related use of theory as the foundation of a theoretical conceptualization of New International Lawyers from a global perspective - situation analysis in the form of a situationality and activity analysis as a platform for a conceptualization and operationalization of the New International Lawyer. (5)

- An unbiased relationship with an appropriate and contemporary interdisciplinarity between different areas of the humanities and social sciences in the concretization of person, situation, position and profession of the New International Lawyer - a dizzying "anything goes". (6)

- An academic openness to raising the issue of change from "modern" to "postmodern" in the history of ideas, including the effects of globalization on law and the legal professions, and to including this within an overall perspective. (7)

- A imaginative and optimistic "mindset" concerning other key ideas and visions for the future roles of "international lawyers" in globalised international practice -
- from the "invisible college of international law" to the "visible college of international law" and the "visible college of international lawyers". (8)"

In the staging of the investigation in the valedictory lecture in „language sentences" for further explanation of the reflection space we cite:
"Having provided an approach through a number of statements to the “exhibition of the reflection space”, there now follow nine guiding principles and nine key quotations as important signposts for a discursive approach to the exploration of a personalistic approach to the understanding within the “reflection space” of legal practice in the context of globalization With one interesting exception, I have deliberately chosen key quotations from Anglo-American writers, mainly from the United States. They are also masters of compression whose sentences are an art form in their own right, guiding us on our journey through the “exhibition space” and serving as “signposts” to the “reflection space”. They follow a descriptive and thematically inspired dramaturgy and adopt central approaches and perspectives to this personalistic approach.

1. Suspicion towards new ideas
Guiding principle: This approach to the personalistic conceptualization of the New International Lawyers and their networks as key actors in globalised legal practice is hindered by certain preconceptions about globalised legal practice:
Key quotation:
JOHN LOCKE (1632-1704), an Englishman, said:
“New opinions are always suspected, and usually opposed, without any other reason, but because they are not common.”

2. Perseverance and stagnation in law
Guiding principle:
This personalistic approach discusses the evolution of law through legal practice in the course of globalization from a global perspective.
ROSCOE POUND (1870-1967), who for a long time was Dean of Harvard Law School, wrote, sitting shaded from the sun at his bespoke round furniture:
Key quotation:
“The law must be stable, but it must not stand still.”

3. From principles to personalities to be motivated
Guiding principle:
This personalistic approach is about the “actions” of active individuals who, as legal actors, playa key role in globalised legal practice.
Key quotation:
OSCAR WILDE (1854-1900), an Irishman, wrote the following while staying on Lake Geneva:
“It is personalities, not principles, that move the age.”

4. The dishonesty of striving for systems
Guiding principle:
This personalistic approach is an American-style, issue-related and topical way of dealing with new realities that seeks to avoid systematization and dogmatization.
Key quotation:
FRIEDERICH NIETSCHE (1844-1900), who collaborated with JACOB BURCKHARDT in Basle at a time of anti-American sentiment, and is a German who is currently enjoying an unprecedented revival in the United States, wrote in Sils Maria in the Engadine:
“Distrust all systematizers and avoid them. The will to a system shows a lack of honesty

5. Common sense as the foundation of the scientific
Guiding principle:
This personalistic approach is also a matter of pragmatic, cosmopolitan philosophical common sense, and not simply dry, dogmatic hard science.
In the words of OLIVER WENDELL HOLMES SR. (1809-8094), professor of medicine at Harvard Medical School, father of Justice OLIVER WENDELL HOLMES JR, and a member of the Metaphysical Club together with WILLIAM JAMES and CHARLES S. PIERCE, who were the fathers of American philosophical pragmatism:
Key quotation:
“Science is a first-rate piece offumiture for a man’s upper chamber, ifhe has common sense on the ground floor.”

6. Finding the essential in what is small-scale and concrete
Guiding principle:
This personalistic approach is about observations, investigations and descriptions that are outward-looking and seek to transform something “small” into something that may be “larger”. In the words of the Indian author and most of all film maker SATY AJIT RAy (1921-1992).
Key quotation:
“It is the presence of the essential thing in very small detail which one must catch in order to expose larger things.”

7. Recognition as looking from the outside to take an active part in the process of change
This personalistic approach is about active participation in the form of observation, investigation, description and shaping of evolving legal life in the context of globalization.
Key quotation:
The American philosopher, educationalist, sociologist and legal expert JOHN DEWEY (1852-1952), who brought American philosophical pragmatism to its first flowering, wrote:
“From recognition as looking in from outside to recognition as taking an active part in the drama of an ever-changing world – that is the historical transition whose history we have followed.” (Use English original if available)
Guiding principle:
This personalistic approach is about incentives to the observation, investigation and description of globalised legal practice as something new and different. RICHARD RORTY (1931-2007), was a close friend of JORGEN HABERMAS. After the revival of pragmatism, he left his post as professor of philosophy at Princeton University in 1982, was professor of humanities at the University of Virginia from 1983 to 1998 until he became an emeritus, and then served as professor of comparative literature at Stanford from 1998 to 2004.
Key quotation:
“People should stop worrying about whether what they believe is well founded, and instead should worry about whether they have managed to summon up enough imagination to think of interesting alternatives to current beliefs.” (Use English original if available)

8. Imaginatively devising interesting alternatives to current beliefs
Guiding principle:
Ultimately, the theme of the personalistic conceptualization of New International Lawyers and their networks as key actors in complex globalised legal practice is a rejection of hasty, non-analytical opinions and values to undertaking questioning with an inquisitorial mindset – a seemingly simple process which as jurists we often fail to adopt be it through complacency or ignorance.
Key quotation:
The American author GERTRUDE STEIN (1874-1946) wrote in Paris:
” What is the answer? .. In that case, what is the question?”
These nine guiding principles and nine key quotations are important signposts in investigating the conceptualization and operationalization of the New International Lawyer. They reflect various standpoints, from which the multidimensional “reflection space” can be measured and triangulated, and are strategic viewpoints in investigating the personalistic approach. The approach to this investigation strategy is to be found largely outside the realms of traditional continental European legal thought. This methodology results from taking account of the ruinous state of pluralization, digitalization, loss of autonomy and systemic collapse as a characteristic of the Brave New World oflaw in the age of globalization. It is inspired by relevant legal factors of a pluralist order, a more associative organization of material, a politicized understanding of law and of the order in concrete problems, and can be seen as a postmodern mode of thought. As with the investigative methodology itself, we believe this also applies to the description chosen here in the form of a staging of the investigation in the “reflection space” through art forms. "

Of course, the possible conceptualization of the legal process of the internationalization of Swiss law and legal culture would be – as the American say - "an elephant to big to chew". There is no way around to face those challenges though. The editor suggests to go to Frank Lloyd Wright's Guggenheim Museum in New York City and "to walk up and down the curved ramps". This is a metaphor used by the composer and conductor Pierre Boulez in a workshop on his work Répons during the Lucerne Festival for in a space and place, which allows the international lawyer to simultaneously look at every step into the future, the presence and the past.

4.     Persons and institutions involved

The editor did the work alone as an individual researcher with no further infrastructure. The project being part of modern knowledge generation and knowledge management in legal matters, the editor never was alone though. He depended on essential contributions in the division of work from various persons, who made it possible that after a long walk" an electronic and a printed version can be published.

The editor thanks Werner Stocker, the managing co-owner and chief executive of DIKE Verlag AG in his function as publisher of the electronic and printed version. Werner Stocker from the outset in the Legal Culture Club and for about four years was the organizational and administrative master of the project of this Anthology. He has dealt patiently with the trials and tribulations of coping with representatives of academia. Despite the fact, that the project so far has lacked a commensurate project infrastructure and an adequate financing, he "pulled it through" and accompanied the editor and made the publications become a reality. The editor further thanks the members of the Legal Culture Club originally part of the project, professors Daniel Thürer, Cyril Rigamonti, Thomas Probst, Wolfgang Ernst and Hans Ueli Vogt for their initial thrust to get the project going and for their critical comments as early birds on the electronic versions after the uploading on the website www... (to be made public later)

Since it was the decision of the general editors and of the publisher to simultaneously publish the works on an online platform, the editor is thankful to Raphael Fisch of DIKE Verlag, who built the structure of the website. Raphael Fisch presently is a candidate for a PhD degree at the University of St. Gallen, working under professor Florent Thouvenin at the Forschungsstelle für Informationsrecht (Research Center for Information Law) (FIR HSG). The editor is thankful to Irene Bangerter of DIKE, who performed the tedious task to scan more than 100 texts in an uploadable form.

The editor thanks his colleague and friend professor Thomas Cottier of the University of Bern, who believes in the novelty and charms of the project, for writing and collecting his part on International Public Law and International Relations and assisting the editor as single practitioner with his vast infrastructure of the World Trade Center at the University of Berne. The editor is particularly grateful for his systematic analysis of the manuscripts as part of an agreed upon peer review. Jack Williams, a collaborator of Thomas Cottier – a junior research assistant and british gentleman of a special kind – has to be thanked for his valuable contribution as a language editor of the lingua franca english.
The editor is particularly thankful for his friend and colleague Urs Gasser, Executive Director of the Berkman Center for Internet & Society and Professor from Practice at Harvard Law School for his willingness to critically accompany the three parts and making accessible a new type of software developed at the Berkman Center as a state of the art educational and teaching tool. He gives the editor joy and comfort, that this work will being made accessible to larger circles in the legal world by institutions, where he had the privilege to work several fall terms in the years of 1999 to 2008 as a visiting research professor at the European Law Research Center at Harvard Law School. Of professor Gasser's team, the editor thanks the summer clerks at the Berkman Center Leigh Graham, Olivia Conetta, Alysa Batzios for having early carefully edited the manuscripts of June 2013 from an English language perspective. Dana Walters has to be thanked for bringing about a state of the art subliscense, loading the texts up to the respective new program of the Berkman Center of Harvard University and helping with an adequate outreach program.

In the personal offices of Drolshammer Strategy & Law's the project – a Tower of Bable in the miriads of modern IT - Technology – had to be worded, arranged, corrected and rearranged at several stages. The editor is particularly grateful to his part time student assistants, without which he would have lost faith in the doability and feasibility of the project. Benjamin Seitzinger was the early responsible student assistant, creating the electronic foundations of the project. The editor particularly thanks his student assistant Gianni Trezzini for his skills and perseverance. He has worked between June 2013 and the first half of 2014 on the manuscripts and put them into a printable version as well as uploaded all the documents on the electronic website.

In view of the fact, that the three parts lead up to the present time, particularly in view of the fact, that the majority of texts with the significant time delay date from the early years of the 21st century, the cut off day of July 2013 is important to take note.

The editor and author could not have done the work without the presence of his children Nils, Liv and Unna, the editors pride and the promise for a future who are the noblest and smartest teachers of their father.

The editor hopes that the initial publications of the parts of Thomas Cottier and Jens Drolshammer will led to an adequate project infrastructure and financing and to further contributory in other areas of law and legal culture in due course.

Law is a key phenomenon and asset of a culture and has to be studied, stated and communicated to the world of readers and users, who nowadays are possibly spread all over the globalized world.
We may end with the Anglo-saxon pessimism of Samuel Beckett, an Irishman in Paris: „Ever tried. Ever failed. No matter - try again, fail better" or the American optimism - the Leitmotiv of this Anthology of Swiss law and legal culture - of the great American jurist Karl Llewellyn "See it fresh - see it whole - see it as it works".

"Das Wärs dänn gsi" -
"That's all folks"

III. Table of content

 1.    Introduction

1.1    Purposes of the part on the Globalization and its relationship to the parts of Europeanization and Americanization of Swiss law and legal culture

1.2    Swiss law and legal culture faced with the new phase of globalization beyond Europeanization and Americanization

1.3    "To take it global" shows a new legal mindset to observe and analyse the "travels" and "impacts" of the legal process of globalization on Swiss law and Swiss legal culture - a globalization - adequate mindset

1.4    Types and Examples of "travels" and "impacts" of the legal process of globalization on Swiss law and legal culture

1.5    Characteristics and peculiarities of the dealing with the "travels" and "impacts" of the legal process of Globalization in Switzerland

1.6    Characteristics and peculiarities of the selection of the texts and of authors in the Anthology writing on the process of Globalization of Swiss law and legal culture

2.    Texts

A.     A cultural exchange and encounter – "travels" and "impacts" of Swiss legal culture on the legal process of globalization

2.1    Pierre Tercier, Le rayonnement international du droit Suisse, Zeitschrift für Schweizerisches Recht, 1999, p. 1-9
[The international radiation of Swiss law]

2.2    Max Rheinstein, Types of Reception, in Max Rheinstein, Gesammelte Werke - Collected Works, Vol. 1, Rechtstheorie und Soziologie, Rechts-vergleichung und Common Law (USA), p. 261-268 (a comment written after the meeting of the International Association of Legal Science held in Istanbul, September 1966 on the issues of the reception of the Swiss Civil Code in Turkey 1926, first published in Annales de la faculté de droit d’Istanbul (1956), p. 31-40

2.3    Jens Drolshammer/Nedim Vogt, English as the Language of Law?, An Essay on the Legal Lingua Franca of a Shrinking World, Zurich, Basle, Geneva 2008; excerpt: VI The international impact of Swiss law, p. 28-31

2.4    Marc Blessing, Introduction to Arbitration - Swiss and international perspectives, Basle, 1999, excerpt: II Swiss Traditions and legal culture, p. 63-66

2.5    Peter Nobel, Das schweizerische Recht vor den Herausforderungen des internationalen Rechts- Bank- und Finanzmarktrecht, excerpt: B, Zweiter Teil; Die wesentlichen Institutionen, Elemente und Ergebnisse der Internationalisierung, I Internationale Institutionen in der Schweiz, in Schweizerischer Juristentag 2012, Das Schweizerische Recht vor der Herausforderung des internationalen Rechts, Zeitschrift für Schweizeri-sches Recht, 2012, Heft 2, p. 199-213
[International institutions in banking and financial market law in Switzerland]

2.6    Carl Baudenbacher, Swiss Economic Law Facing the challenges of International and European Law, excerpt G: Contributions of Swiss Law to Foreign, International and European Law, in Schweizerischer Juristen-tag 2012, Das Schweizerische Recht vor der Herausforderung des internationalen Rechts, Zeitschrift für Schweizerisches Recht, 2012, Heft 2, p. 646-660

2.7    Raymond R. Probst, "Good offices"; in the light of Swiss international practice and experience, Dordrecht/Boston/London, 1989; excerpt: Chapter III, "Good offices": The Swiss experience, p. 17-70

B.     A cultural exchange and encounter - "travels" and "impacts" of the legal process of globalization on Swiss legal culture
a)    general impacts and challenges in legal practice, legal education and legal research

2.8    Thomas Cottier, Die Globalisierung des Rechts - Herausforderungen für Praxis, Ausbildung und Forschung, Zeitschrift des Bernischen Juristen-vereins, 1997 p. 217-236
[Globalization of Law - Challanges for Practice, Education and Research]

2.9    Daniel Thürer, Die Bundesverfassung von 1848: Kristallisationspunkt einer Staatsidee; Drei Paradoxe und die Frage ihrer Bedeutung für die Fortentwicklung der Verfassungskonzeption im Zeitalter der „Globalisie-rung", in: Daniel Thürer, Perspektive Schweiz, übergreifendes Verfas-sungsdenken als Herausforderung, Zürich 1998, p. 15-34
[The Federal Constitution of 1848: Point of crystallization of an idea of government; three paradoxes and the question of its significance for the further development of the conception of constitution in times of "globalization"]

2.10    Hans-Ueli Vogt, § 7 Das Recht in der Globalisierung, excerpt: In Konvergenz von Gesellschaftsrechten, ein rechtsvergleichender Befund und seine rechtssoziologische und rechtstheoretische Erklärung im Lichte der Globalisierung, Zurich/St. Gallen 2012, p. 282-308
[Law in Globalization]

b)    impacts on Swiss governmental structures by the constitution-alisation of international law

2.11    Thomas Cottier, The Constitutionalism of International Economic Law, in: Karl M. Meesen, (ed., in cooperation with Marc Bungenberg and Adelheid Puttler), Economic Law as an Economic Good, Its Rule Function and its Tool Function in the Competition of Systems, Munich 2009, p. 317-333

c)    impacts on Swiss legal science

2.12    Jens Drolshammer, Wird die Globalisierung selbst zu einem Forschungsfeld?, in Verlangt die Globalisierung eine Neuausrichtung der Forschung? Beispiele von Forschungsfeldern in Recht und Management aus Sicht des Internationalen Lawyers, in Jens Drolshammer A Timely Turn to the International Lawyer? - Globalisierung und die Anglo-Amerikanisierung von Recht und Rechtsberufen - Essays. Zurich/Baden-Baden, 2009, p. 432- 437
[Is Globalization itself becoming a field of research?]

2.13     Thomas Cottier, Challenges ahead in International Economic Law, Journal of International Economic Law, 2009, p. 1-13

d)    impacts on Swiss legal professions

2.14    Peter L. Murray /Jens Drolshammer, The Education and Training of a New International Lawyer, in the Internationalization of the Practice of Law, Jens Drolshammer/Michael Pfeifer ed., Kluwer Law International, The Hague London/Boston, 2001, p. 289-328

2.15    Jens Drolshammer, A College of International Lawyers in a Networked Society? The Need for Conceptualisation of the New International Lawyer from a Global Perspective, in Jens Drolshammer, A timely Turn to the Lawyer? - Globalisierung und die Anglo-Amerikanisierung von Recht und Rechtsberufen - Essays, Zurich / Baden-Baden, 2009 p. 601-632; first published in Reflections on the International Practice of Law, Liber Amicorum for 35th Anniversary of Bär & Karrer, 2004.

e)    Impacts on Swiss legalisation

2.16    Heinrich Koller, Globalisierung und Internationalisierung des Wirtschaftsrechts - Auswirkung auf die nationale Gesetzgebung, Referate und Mitteilungen des schweizerischen Juristen Vereins, Zeitschrift für Schweizerisches Recht, 2000, p. 313-360
[Globalization and Internationalization of Swiss economic law - The effects on national legislation]

f)    globalisation and the law of information

2.17    Jean Nicolas Druey, Das Verhältnis von Information und Recht, excerpt: 1. Teil, 2. Kapitel in Information als Gegenstand des Rechts, Zurich/ Baden-Baden 1995, p. 437-444
[The relationship between information and law]

2.18    Herbert Burkert, Information Law: From Discipline to Method, in a special series of the Berkman Center of Society and Cyber Law, Harvard University, 2014 (to be published)

2.19    John Palfrey and Urs Gasser, excerpts: Solving for Interop, Architectures of the Future: Building a Better World and Conclusion: The Pay off of Interop as Theory, in Interop: The Promise and Perils of Highly Intercon-nected Systems, New York, 2012, p. 231-262

2.20    Thomas Cottier, The Impact from Without: International Law and the Structure of Federal Government in Switzerland, in Peter Knoepfel, Wolf Linder (ed.), Verwaltung Regierung und Verfassung im Wandel, Gedächt-nisschrift für Raimund Germann, Basle, Geneva, Munich, 2000 S. 213-230, reprinted in Thomas Cottier, The Challenge of WTO Law, Collected Essays, London, 2007, p. 371-390

3.    Bibliographical references

4.    Biographies of authors

a) Background

The text at hand is the written version of the valedictory lecture of Jens Drolshammer given on the 15th May  2009 at the University of St. Gallen prior to his becoming an emeritus professor. The text has been published as a scientific contribution in the Zeitschrift für Schweizerisches Recht in 2009. A short version of the valedictory lecture has appeared in the Newsletter of the Deutsch-amerikanische Juristenvereinigung (Newsletter of the German-American association of lawyers) in 2010. In its form, the text is an essay, using the prerogatives of academic freedom. It refers to a collage style, drawing upon among others aspects of the fine arts and music. In view of the complexities of globalization in law the topic is addressed from different perspectives and positions and with different methods. The text is largely based upon observation and experience and is situated in the context of professional activities. The text is written on a "bottom-up" and "facts and issues-driven" basis. The text advocates the institutionalization of grasping globalization in legal education and in legal professions by observing and describing the professional activities of representative legal professionals and their networks and aggregating them into a pattern and overall picture in a holistic fashion. The main title "The Global Grove of Harvard Yard" means to address the spell being cast by the "soft power" of American legal and academic culture over the subject area. The main title is also intended to refer to a metaphor for something that goes even further: an attempt to capture the almost musical phenomenon that certain American educational institutions at times may inspire the participating observer and researcher personally, professionally and academically. The text at hand is an example of a Swiss lawyer and visiting researcher bringing European concepts to the dialogue on emerging concepts of international lawyers at Harvard Law School while at the same time integrating American interdisciplinary thinking in his work of attempting to conceptualize a new international lawyer in the legal process of Globalization. Jens Drolshammer is an emeritus (2010) professor of law at the University of St. Gallen and a former founding and senior partner of an international commercial law firm in Zurich. He practiced internationally for many years dealing with issues of American law and legal culture. He worked in that context from 1999 to 2008 as a Swiss visiting research professor at the European Law Research Center at Law School of Harvard University, developing a methodology for analyzing effects of globalization. This led to the publication of twenty essays in A Timely Turn to the Lawyer? - Globalization and the Americanization of Law and Legal Professions - Essays (2009).

b) Summary

The text is based upon a quote out of Henrik Ibsen's Peer Gynt of 1867 and deals with the transformation of people (as professionals) and the forging of new relationships (networks) between them - people who are exposed to internationalization and who manifest themselves professionally in internationalization. The text deals with the life and work situations of professionals and of the associated international networks as key players in the globalized legal world. It is these "New International Lawyers" who in the globalized legal world essentially turn "theories" in to "action", the core areas being: Person-Situation-Position and Profession. The text is written with an agenda for a subsequent operationalization of a new international lawyer. The vision aimed at is a "College of International Lawyers" with their potentials in the networks under the aspects of "comparability", "compatibility" and to some extent also "competitivity" -and above all of "interoperability". The text postulates as the principal thesis - by analogy with Justice Holmes statement that "Law is what the judges say it is" – it is true to say that in the globalized legal world that "Law is what the international lawyers do". The text takes a personal approach based upon a Weberian sociological approach with respect to the lawyer, likened to an economic approach with respect to the "entrepreneur", a political economy approach a more advanced form of "homo oeconomicus", the "Manager" in management theory as well as in theories on "Leadership" and "Entrepreneurship". The text looks over the Atlantic Ocean to the United States and notes that practically and theoretically at American universities the topic is being analyzed and researched from different perspectives and in different forms and different academic spheres. According to the text this is done with interdisciplinary diversity, with a curiosity rooted in reality and with a focus on the theme that is also clearly and strongly anchored in various academic disciplines taking the issue global. The text notes that the academic exploration of globalization and of people and professionals in a time of globalization is mainly being carried out by Anglo-Americans and is primarily published in English. The asynchronicity and above all the asymmetry of the process of inquiry, research, teaching and professional implementation in professional reality compared to the continent of Europe is remarkable. In its main focus the lecture addresses aspects of the American minds, melodies and rhythm - "play me the song of Pan" - and the influence of the seductive power of the American knowledge base in developing the topic. The text makes eight statements from a globalization prone mindset, motivation and curiosity. (1)The lead statements are "see it fresh - see it whole - see it as it works" - facts first; (2) The Nobilitating shift to "Behavior" and "Effect" and the special liaison between "Knowledge" and "Activity"; (3) "Take it Global"- a deliberate and self-understood choice of perspective on a meta-level; (4) "The times They Are A-changing" - tackling the challenges of Change; (5) "The Issue-Driven Use of Theory" - the example of the "Situationality and Activity Analysis" of a New International Lawyer as a theoretical platform for a conceptualization of a new international lawyer"; (6) The free jazz of "anything goes" in the Interdisciplinary competition and cooperation of the social sciences in constructing the new international lawyer in Globalization; (7) The inclusion of postmodernism into the Brave New World of Law and Lawyers in Globalization; (8) and the Vision of a "Visible College of International Lawyers". The final part of the exploration of the topic uses the art form of "Language Sentences". The text uses nine quotations as guiding principles and signposts for a discursive approach to the postmodern "reflection space" of the personalistic conceptualization of the New International Lawyer. The quotations come from (1) John Locke; (2) Roscoe Pound; (3) Oscar Wilde; (4) Friedrich Nietzsche; (5) Oliver Wendell Holmes Sr.; (6), Satyajit Ray; (7) John Dewey; (8) Richard Rorty; (9) and Gertrude Stein. Though acknowledging various dark sides of American law as an American legal and academic culture experienced in various functions, the text closes with a call for "joy" dealing with the specific topic with the specific contributions of American legal and other academic disciplines. The topic is treated under the main Leitmotiv of Karl Llewellyn of the essay collection "see it fresh-see it whole-see it as it works" - the Leitmotiv chosen for the Anthology as well.

c) Text

You can find a scan (PDF) of the original text here:
A_2.42_DROLSHAMMER_Groove

[The situationality of the enterprise lawyer as international lawyer as international lawyer in the tension between globalization and anglo-americanization]

a) Background

This text appeared in the first reader on the European continent on the topic In-house Counsel in internationalen Unternehmungen. It systematically deals in twenty-seven texts with a variety of aspects of the legal profession of enterprise lawyers in particular general counsels in globalization. It is a fact that this important profession, which underwent dramatic changes in the last phase of globalization, is under researched in legal sciences as well as being underrepresented in the professions of the in-house lawyers. The text at hand takes a so-called personalized approach to describe and understand the phenomenon of globalization from a holistic perspective by looking at legal professions as key actors that are marked by the phenomenon of their networks and their integration on an international scale. It is a further step in the generalization of the proposed approach to conceptualize the legal process of globalization by describing the activities of the key legal actors. This is of particular relevance in the worldwide interdependent economy of Switzerland since there are an above average number of multinational enterprises based in Switzerland. The text of Jens Drolshammer should be read in conjunction with the text A College of International Lawyers in a networked society? (2.15 in the part of Globalization). The need for conceptualization of a new international lawyer from a global perspective and the text 3 The Global Groove of the Harvard Yard - Personal aspects of the person in the "Globalisation and the Anglo-Americanization of law and legal professions".

b) Summary

The text addresses a legal profession that has the privilege of usually being the most and earliest exposed to the legal process of globalization owing to the fact that the activities of their enterprises are directly exposed to the effects of a multiplicity of legal systems. The text situates the legal profession of enterprise lawyers and general counsels in the legal process of globalization through a personal approach, which has a longstanding tradition in other humanities and social sciences. It further situates this profession in a new interdisciplinarity arising at the legal process of globalization. The text analyses the reasons why in the past this legal profession has not been analysed in legal science and has not been written about by enterprise lawyers and general counsels themselves. It describes the fact that legal profession in all its aspects and dimensions by large after World War II has been Anglo-Saxon and particularly American driven. The text identifies the major aspects of the changes of the legal process of globalization with respect to enterprise lawyers and brings to the foreground special characteristics of this change for this legal profession. The text states guiding principles for the future development of the international lawyer and in particular the international enterprise lawyer and stipulates a list of desiderata for further conceptualization of this profession. The text ends by stating the need to develop a guiding vision of lawyering internationally in the various key professions. It moves from the vision of "a Visible College of International Lawyers" to the vision of "the Invisible College of International Law".

c) Text

You can find a scan (PDF) of the original text here:
A_2.43_DROLSHAMMER_Zur Situationalität

a) Background

The text at hand deals with the Washington Accord between the United States and Switzerland of 1946. It has been written by Daniel Frei, an eminent former professor of political and international relations at the University of Zurich. The negotiations on the Washington Accord marked the true end of World War II for Switzerland and pitted Switzerland against the United States in a hard and fierce encounter. During World War II, Switzerland has become more and more isolated and in the last years of the war has come under increasing pressure of the Allied Powers, in particular of the United States. (The interested user and reader may turn to chapters 14 Turning the Screw:

American Pressure on Switzerland during the last year of the war (page 317 following), chapter 15 The Aftermath of the War: The German Assets in Switzerland (page 347 following and chapter 16 Postwar Economic Relations (pages 371 -390) of the Swiss historian working out of the United States Heinz K. Meier in his book Friendship under Stress: U.S.-Swiss relations 1900 to 1950. At the end of World War II Switzerland was exposed to a type of isolation it had never experienced before. An important factor was the 1946 Washington Accord on German assets in Switzerland and gold as well as the exclusion of neutrals from the San Francisco conference of 1945.

Based upon the so called Currie-Agreement of March 8 1944 after a period of increased pressure of the Allied Powers Switzerland had to almost completely relinquish transit transports to Italy, to block German assets in Switzerland and to reduce exports to Germany to a minimum level.

Moreover Switzerland had to conclude a financial agreement with France on advance payments in the amount of Swiss francs 250 Million. The Washington Accord was part of the economic warfare of the Allied forces. The respective program of action used the codeword "Safe Haven". The main purpose of the program was, to prevent Germany to build a camouflaged base for a weapons industry and training grounds for military troups. Beyond that, operation "Safe Haven" served to question looted assets transferred by Nazi Germans into neutral countries and to later include German assets outside of Germany to finance war reparations. In that context, Switzerland was a special target, since the allied forces assumed US dollars 300 millions to be in Switzerland. The more Germany's power crumbled, the more resolute the behaviour of the Allied Powers vis a vis neutrals became. On a proposal of the United States, the Allied forces decided to link all economic negotiations with negotiations on a participation in the Safe Haven program. Switzerland therefore on February 16th 1945 decided as a preliminary measure, to block all German accounts, to institute a duty of notification of all German accounts and to waive the banking secrecy and respective professional duties of secrecy for attorneys and notaries. Switzerland assumed, that the Allied Powers started to pressure Switzerland to hand over German assets in Switzerland for the purpose of reparations. At the time of the Currie Agreement, Switzerland argued, that this would be without a legal base and that Switzerland was considering for the later negotiations of the Washington Accord to offset German claims on Swiss assets with Swiss claims on German debth. With the exception of Great Britain, the Allied Powers predominatly had a negative attitude vis-a-vis Switzerland. This was the background of the negotiations of the Washington Accord in Spring of 1946 Switzerland's main purpose was to accommodate the US strategy and at the same time become an accepted member of the new world again.

For the purpose of this Anthology we note, that in the Swiss delegation to Washington among others participated Dietrich Schindler sen. (see text 2.45) and William Rappard (see text 2.16 and 2.19). The Swiss delegation was headed by the towering and sturdy government official, diplomat, and at times member of the parliament Walter Stucki. His life is described in a new biography by Konrad Stamm, "Der grosse Stucki, eine Schweizerische Karriere von weltmännischem Format: Minister Stucki von 1888 - 1963" (The great Stucki, a Swiss career of worldly format: Minister Walter Stucki 1888 - 1963) Zürich, 2013. The outcome of the negotiations of the Washington Accord were highly controversial in Switzerland, many spoke of a capitulation. The behaviour of Switzerland in the negotiations of the Washington Accord and in the ensuing phase of implementation was at the source of consecutive frictions with the United States. Stuart Eizenstat almost 50 years thereafter in his contested forword for the Eizenstat I report of May 1997 squarely addressed the behaviour during the negotiations and in particular concerning the performance of the Accord in harsh words (see text 2.47).

For the sake of clarification, the issue of dormant accounts was not directly part of the negotiations of the Washington Accord. Nevertheless this decisive post World War II encounter of Switzerland with the United States set the stage for conflicts between Switzerland and the US. This, among others, will be dealt with in the ensuing texts 2.45 - 2.49 under the title Neutrality, Morality and the Holocaust as well as in the case study of the UBS case in texts 2.50 - 2.53.

Daniel Frei is a native of Diepoldsau, St Gallen, Switzerland, where he was born in 1940. Frei was the first professor for political sciences at the University of Zurich. He studied history at the University of Zurich, where he got his PhD in 1964 with his doctorate thesis on “The promotion of Swiss national consciousness after the collapse of the Old Swiss Confederation in 1798″ After his graduation Daniel Frei did post-doc studies at the London School of Economics, the Graduate Institute of International Studies, Geneva, and the University of Michigan. In 1968 he obtained his habilitation at the University of Zürich with an analysis with the title “Dimensions of neutral policy”. In 1971 he was appointed to the new professorship for political science with particular emphasis on international relations at the University of Zurich. Daniel Frei significantly promoted the development of political science in Switzerland – not least through his research on the security policy and the East-West relations. He was regarded as the most distinguished German Swiss representative in his field. Starting in 1986 he was a member of the International Committee of the Red Cross, since 1976 also a representative and a president of the Swiss Institute of International Studies in Zurich. Daniel Frei is the author, co-author and editor of the following books in English: International Crises and Crisis Management, Evolving a Conceptual Framework for Inter-Systems Relations, Definitions and Measurements of Détente, East-West Relations in Europe: A Systematic Survey, and The Risk of Unintended Nuclear War.

b) Summary

The text at hand is a scholarly article. It focuses on the Washington Accord of 1946. It was written as a contribution to the history of Swiss foreign policy between World War II and the Cold War. The text has been published in the Schweizerische Zeitschrift für Geschichte (Swiss journal for history). Daniel Frei, according to the text had access to relevant persons and archives on both sides of the Atlantic. The text is a lively and highly readable account of a crucial phase of Swiss foreign policy immeditaly after World War II and it combines historic and political science methods of research it contains a remarkable description of the state of minds and the views of the various actors involved on the Swiss and on the American side.

In the introduction, the text describes the background of behaviour of the Allied Power's towards the end of World War II. The more the German power crumbled, the more resolute the attitude of the Allied Powers vis-a-vis the neutrals became. Switzerland was the main target.

The text then describes the moral and political isolation of Switzerland after the end of the war. The Allied Powers more and more questioned the behaviour and existence of Switzerland as a neutral state; this led to a reassessment and reconsideration of Swiss national consciousness in Switzerland.

The part of the text Die Verhandlungen in Washington: Ausgangslage (negotiations in Washington, the situation at the outset) describes the power structure of the post World War situation and the situation Switzerland had found itself in. Due to the strong and sturdy negotiation position of minister Walter Stucki, the conflict amounted to a conflict between David and Goliath. The situation was marked by trips back to Switzerland as part of the negotiation strategy and attempts to enter into direct contacts with other members of the Allied Power.

The part Der Nervenkrieg und das Abkommen (the tug of wars and the Accord) describes the complexity of the issues at hand. The key question was the determination of a settlement sum between US dollars 100 million and US dollars 250 million. An important issue was the alledgedly acquired gold by Switzerland. The overriding goal of Swiss post war foreign policy was to overcome the post war isolation.

The text in subpart Die Aufnahme des Abkommens in der Schweiz (the perception of the Accord in Switzerland) highlights the  hesitation of large parts of the Swiss population to accept the Accord. The final part Der Beginn des kalten Kriegs (the beginning of the Cold War and its effects on the implementation of the Washington Accord) deals with a substantial realignment of American foreign policy. The Morgenthau plan to deal with Germany was discontinued.. The Marshall plan was formed in late Summer of 1947 instead. The text in detail deals with the implications of those changes for Switzerland.

The text at the end deals with "Von der "Durchführung" zur "Ablösung" des Abkommens (From the implementation to the replacement of the Accord).

The text ends with a general assessment of the achievement of the goals of Switzerland to formalize its relationship to the losing and the winning powers as well.

c) Text

You can find a scan (PDF) of the original text here:
A_2.22_Frei_Washingtoner Abkommen

Dieter Freiburghaus grew up in Laupen close to Bern. He studied mathematics in Bern before going on to study economics and political science in St. Gallen and Berlin. Freiburghaus was a scientific collaborator at the Wissenschaftszentrum Berlin under the direction of Fritz W. Scharpf, where his research activities at the time mainly focused on labour markets. After obtaining his doctorate degree from the Freie Universität Berlin he returned to Switzerland and founded the Forschungsstelle Wissenschaft und Politik in Bern, a small consultancy firm for the evaluation of politics, mainly focusing on labour markets and research and technology policy. He habilitated in institutional economy with Professor Silvio Borner at the University of Basel.

From 1988 to 2007  Freiburghaus was a full Professor at the Institut de Hautes Etudes en Administration Publique (IDHEAP) in Lausanne. He taught courses on institutional questions of the Swiss political system, European integration and on the internationalization of public policies. He was a director of Europaseminare Solothurn, a program of short courses of education on Europe for officials of the government and of the Cantons. At the Institute for Politikwissenschaft of the University of Bern he gave seminars on the theory on European integration and on globalization. He has been a consultant for among others on various issues of Swiss and German federalism. Since he became an emerite he works as a publicist,often publishing articles and giving lectures on topics such as European integration, Swiss policy vis a vis Europe and the Swiss political system in general.

 Publications : (http://www.dieter-freiburghaus.ch/weitere-schriften/).  

References: Personal website of Dieter Freiburghaus http://www.dieter-freiburghaus.ch/lebenslauf/

Cohen Cheat Sheet on Compulsory Party Joinder, Intervention, and Interpleader.

NB: I will not test you on this material or really cover it in any depth in class but you should read it. It is on the line of "Civ Pro" and "Advanced Civ Pro" (if that course ever exists) and I want you to know about this for your practice.

I.    Compulsory Joinder of Parties.

(Note: In the older terminology “necessary part[ies]” are the kind discussed in FRCP 19(a), who really should be joined as parties. Then a further subset of people “indispensable parties,” those who should be joined, but can’t, and in their absence the case will be dismissed.)

The Theoretical Problem: When should litigant autonomy in shaping the lawsuit give way to efficiency or justice concerns, such that we’ll override it? Imagine you wanted to throw me a birthday party and selected a particular date, my birthday. Now imagine one member of class can’t make the party that day, but the other 79 or so of you can. You’d probably stick with the original date. Now imagine I can’t come to my own birthday party. You’d cancel it. This is how this issue works except it is a lawsuit not a birthday party. Who should be invited to join? Who can’t be joined who should? And of the people who can’t be joined but should, who are so important that we would dismiss the lawsuit altogether if they can’t be joined?

The Doctrinal question: When MUST you join another party, and when does the inability to do so pose a problem?

Three questions:

1. Should the absent party be joined? [FRCP 19(a)]
2. If the outside absent should be joined, can s/he be joined? [Deals with problems of personal and subject matter jurisdiction.]
3. If the outside absent should be joined and cannot be joined, what happens?

1.    Should the absent party be joined?

3 kinds of required parties:

First, R. 19(a)(1)(A) party “in that person's absence, the court cannot accord complete relief among existing parties.” AKA situations where not bringing the outsider in would be unfair those already in the action.

Example: Doc enters a contract to buy plutonium for his time machine/car from Biff and George McFly. He subsequently learns that they misrepresented the grade of the plutonium and sues Biff to rescind the contract (i.e. make it void). Rescinding the K as to Biff would not be be helpful to Doc if the contract isn’t also rescinded as to McFly. So we’d want McFly joined too, if feasible. McFly is an FRCP 19(a)(1)(A) party.

Example: The Martin Flemmer Company (“Flemmer”) leases office space to Charlie Kaufman Productions (“Kaufman”), who in turn subleases the 7 and a half floor to LesterCorp. After Lester Corp takes possession, it discovers that the elevator does not properly stop on the 71/2 floor and asks for a minor alteration. Kaufman is required, under the sublease, to make reasonable accommodations. But under the original lease it cannot make changes without Flemmer’s approval and does nothing. Lestercorp sues Kaufman for specific enforcement of the sub-lease. Here too you cannot get full relief without joining the absentee. The court can order Kaufman to fix the elevator, but Kaufman cannot do so without Flemmer’s permission, so it makes sense to join Flemmer in order to get complete relief between the original parties in the case.

Other examples: Let's say you have five people party to the contract, each of whom is supposed to supply a different element of a device, and you want specific performance. Well, unless you can get all five of them before the court, you're not going to get effective specific performance. Similarly, you're not going to get effective reformation of the contract, if that's what you're trying to do. Similarly, if you have five owners of a piece of property, and you're trying to subdivide the property, or partition the property, or determine whether a security interest on the property is valid, you really need all five co- owners. This should strike you as being very commonsensical. If you want to distribute an estate or an insurance policy, you really need everybody before the court. Otherwise, you can't do effective relief for those who are before the court.

Second, FRCP 19(a)(1)(B)(i) party: “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest.”  AKA situations where it would be unfair to the outsider.

(Note: as a “practical matter impair or impede the person's ability to protect the interest” is somewhat problematic language. If I ran a school that was segregated pre-Brown, is there an argument that Brown as a practical matter impaired or impeded my interest such that I’d have to be joined? The problem with this language is that it appears as though it can be read such that everyone or no one will be a necessary party. Very tangled jurisprudence. For our purposes it is enough that you get the stock “common fund” problem application.)

Example: With the stock market collapsing, the federal government creates (through statute) a common fund to distribute money to investment banks based on an established formula that takes into account, inter alia, the number of employees they maintain, how much of their investment is in stocks, etc. One such bank, Gekkobank sues claiming its allotment under the fund is inadequate. The other banks would be required parties under this section. Giving more to Gekkobank means less for everyone else. Unless they are part of the lawsuit, they may, as a practical matter, not have their interests in getting their money protected.

Other examples: in any case in which you're adjudicating the rights to a limited fund, say an insurance policy. You have four people before the court on a $100,000 policy, and a fifth person is outside the courthouse. Well those four people before the court may exhaust the insurance policy, leaving nothing for the outsider.

Notice the rule says as a “practical matter” not as a legal matter. Bad precedent for you could be enough to give you an interest in the case, as a legal matter, but that’s not the test.

Third, FRCP 19(a)(1)(B)(ii) party: “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:... (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.”

Example: Alfred owns a California hotel. He sells it to Norman, who plans on running it with his mother. As part of the sale $50,000 is put in escrow with the Bank of America, on the condition that it will be released to Alfred if he completes all specified repairs by a fixed date. Alfred sues the bank claiming the repairs that were done were adequate, and so he is entitled to the escrow money. Norman believes that the repairs to the showers were inadequate, and therefore the funds should be released to him. Here is a case where the bank is damned if it does and damned if it doesn’t. Imagine that Alfred wins his suit and the court orders the bank to shell the money out to Alfred, who is suing it. Well then ten days later Norman sues asking for the funds. The bank is at risk of being subject to inconsistent obligations. The wisest course would be to bring both Alfred and Norman before the same court in one suit, the judgment that would enter would be binding as to both of them.

Note: Some cases fall within more than one subdivision of FRCP 19(a)(1). That’s fine.

Note: Where there is joint and several liability among joint tortfeasors (you can sue anyone of them for the full amount), joint tortfeasors are not required parties (Temple v. Synthes Corp., S. Ct. 1990). Your torts professor will teach you more about joint and several liability.

2.    Can that party be joined?

Example: Doc (CA) enters a contract to buy plutonium for his time machine/car from Biff (MA) and George McFly (CA). He subsequently learns that they misrepresented the grade of the plutonium and sues Biff to rescind the contract (i.e. make it void). Assume no AIC problems. The court concludes that George is an FRCP 19(a) required party. Can that party be joined? No, there is an SMJ problem in that adding him would destroy diversity. Notice also that supplemental jurisdiction is not going to help here because § 1367(b) lists claims “by Pls against persons made parties under . . . Rule 19.”

There may also be cases where there is no PJ over the party to be joined, though this is one place where the bulge rule of FRCP 4(k)(1)(b) comes in handy.

3.    If that party cannot be joined, what should you do?

3 Options: (i) Let the case go on without the absent party. (ii) Dismiss the case. (iii) Go forward without the absent party, but try the judgment to provide appropriate relief to the parties.

In the old days: you would just dismiss the action for want of an indispensable party. This was done through FRCP 12(b)(7): Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion . . . (7) Failure to join a party under Rule 19.

So in the old days, if there were a hundred people who owned Blackacre, and you could only join 99 of them when apportioning, you threw out the whole case.

As litigation became increasingly complex (i.e., multi-party) this had to be softened. If we can’t divide blackacre the action is stalemated, and sometimes division is critical (e.g., someone desperately needs the money from a sale) and this caused proceduralists to re-think the issue. This is the realist story, the formalist story has to do with a move away from thinking of the lack of FRCP 19 required parties as a deficit in SMJ and thus power of the court, and into something else.

The softened modern approach version is shown by FRCP 19(b):

(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:

(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;

(2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures;

(3) whether a judgment rendered in the person's absence would be adequate; and

(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

This just screams “discretion.” “Equity and good conscience.” Judges are encouraged to be creative. For example, if you have people entitled to a settlement and one is truly unavaivable, a trial court judge COULD divide the settlement and hold one share in escrow for the missing claimant. But judge could still just dismiss if he preferred. This is very fact intensive analysis.

II.    Intervention.

This is for a 3rd party who is not brought in by the other parties, but just wants to “parachute in.” The person does not have a death wish; usually it is because some of their rights are at risk of being violated. A good example comes from the recent Proposition 8 litigation where none of the parties (the challengers, California) wanted to defend the constitutionality of Proposition 8, so it fell to an outside party – the Proposition 8 sponsors – to defend the constitutionality of the statute, and they entered the fray through intervention. Even though we distinguish “permissive” from “as of right” both are voluntary, nothing forces an FRCP 24 intervenor to come in.

(Note: Just to make matters more complicated, the fact that you can intervene in the district court does not mean you can necessarily take an appeal when the initial parties do not want to. This was one of the key issues in the Proposition 8 case in the Supreme Court.)

There are two kinds of intervention in the federal system, covered by Rule 24.

1.    Intervention as of Right.

When you meet the requirements, you have a right to intervene. The Rule says you can have intervention as of right when (a) a federal statute says so; Or (b) you can have intervention as of right when the lawsuit is about an interest or property, and the disposition of the action may, as a practical matter, impair or impede the intervenor's ability to protect himself, and existing parties do not adequately represent that interest (3 conjunctive requirements).

The middle requirement of (b) is really the flip side of FRCP 19(a)(1)(B)(i) party: “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest.” But here the indispensable party is seeking to get in not someone already in the litigation who has to join them.

In terms of the third requirement that “existing parties do not adequately represent that interest,” there is a whole complex jurisprudence about this. The basic idea is that this litigant needs to bring to the table something that is overlooked or ignored if only existing litigants were allowed in. This is supposed to be a minimal bar.

Even though this is “as of right” it still has to be “timely” and if you try to intervene too late you will be blocked.

Examples of intervention as of right:

2.    Permissive Intervention.

The Rule says permissive intervention when (1) the statute gives you a conditional right to intervene, or (2) intervenor's claim or defense has a common question of law or fact with the main action. [FRCP 24(b)]

Permissive intervention is always discretionary. Among the reasons it will be denied is that it causes undue delay or prejudice, for example it would require reopening discovery.

The court can also allow intervention for only limited purposes rather than general purpose intervention.

Examples of permissive intervention:

You cannot intervene if it would destroy SMJ, for example by destroying diversity. Can you use supplemental jurisdiction? In some cases, no, look at § 1367(b), which for diversity cases explicitly prevents supplemental jurisdiction for Rule 24. Statute says it does not reach “claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules.” So you cannot reach a claim by Pl against intervenor, or a claim by intevenor as Pl in this circumstance.

Because intervenor is coming in voluntarily, there is no PJ problem (she has waived it).

Intevenors are NOT amici, who are merely friends of the court and not parties to the lawsuit.

III.    Interpleader.

Imagine I pick up your laptop, and hold on to it. You sue me and say it is yours. Well I want to give it away. But I also know that two other students think it is their laptop and will sue me too . . . what am I to do? Well it is like a “hot potato” – I want to get rid of it, and interpleader is a rare and exotic device meant to do that.

It is designed to deal with complex, multi-party litigation. Paradigmatic case: several parties claiming the right to singular piece of property. For example, several people fighting the Met over the ownership of a Picasso.

There are two different ways interpleader can be invoked: the party holding the property can turn the property over to the court and have the claimants fight it out amongst themselves or the party can turn the property over to the court and become one of the claimants themselves.

There are two different kinds of interpleader.

1.    Statutory Interpleader.

This is more powerful but only applies when there is more than $500 at stake. Found in 28 U.S.C. §§ 1335, 1397, 2361. Why is it more powerful? Because we can get a lot of parties into the claim. Permits venue in any judicial district where claimant resides, and nationwide service of process to reach all claimants. Also nationwide personal jurisdiction, remember FRCP 4(k)(1)(C)! Requires minimal not complete diversity between the claimants; the citizenship of the stakeholder is irrelevant.

2.    Rule Interpleader.

FRCP 22. This is the less powerful cousin, what you’d use if you had something less than $500 on the table. Requires either FQ or Diversity jurisdiction to be fully satisfied, including complete diversity between the stakeholder and the claimants, and AIC if you go that route. Does not authorize nationwide service of process.

[Deliberative and Voting Democracy, About the idea of democratic justice in the European tensions of state hood]

a) Background

The text at hand is an essay republished in volume 1 of Kosmopolitisches Staatsrecht (Cosmopolitan Public Law), Grundidee Gerechtigkeit (Fundamental Idea: Justice), the first volume of a systematic collection of the most important texts of Daniel Thürer in 2008. Volume 2 entitled, "Völkerrecht als Fortschritt und Chance (International Public Law as Progress and Opportunity), Fundamental Idea: Justice was published in 2009. The text describes and contrasts the dimension of deliberative democracy to the dimension of voting democracy. At the centre is the idea of "democratic justice" with the aspects decision and deliberation explored in the context of the intrinsic tensions in European integration in integrating the role of "democratic justice." The text is written from a fundamental, global and comparative perspective also seeking a role of the Swiss democratic experience in the process of European integration. The text argues for an unlocking or unleashing of the specific democratic potentials of national and supranational organisations such as the EU from the historic experiences with decision and deliberation in Europe at large.

Daniel Thürer is an emerite Professor of International Law, European Law and Comparative Constitutional Law at the University of Zurich. He is a leading analyst and commentator of the developments in the legal relationship of the EU law and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Counsel to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU.

b) Summary

Thürer establishes "democratic justice" as an element of constitutions of nations and as an instrument of international public law, with a crucial element of human rights being the basis of liberty, justice and peace in the world. The protection of the basic laws and human rights nowadays include the "right to democracy", which also has become a generally accepted element of the idea of justice. The United States, France and Switzerland were democratic states only in the nineteenth century. The principle of democracy after World War II has witnessed a triumphant success, the core idea of democracy always being that members of a community participate in the shaping of the polity based on the principle of equality. Thürer's reasoning is based on a normative and value based notion of democracy.

Thürer then describes and contrasts the interdependent dimensions of the "voting democracy" and "the deliberative democracy" – the right to elect the representative and the right to participate in the decisions on substance. In Switzerland experience collected in the use of direct-democratic instruments brought about an incomparable laboratory and field of experimentations of direct democracy amounting to an element of national identity.

He identifies the roots of democracy, such as the fight against autocrats and the idea that all citizens are equally enabled to reason political decisions, along with direct democracy as a manifestation of political freedom. The negative potentials and the shadows of the realisations of the principle are addressed, for instance, in the area of foreign policy in which democratizing competence and judgement are often suboptimal. The "element of deliberative democracy" is introduced with the three dangers in the background - "tyranny of the majority", "enlightenment" and "totalitarian temptation" – is characterised by three elements of deliberation: capacity, responsibility and reciprocity. Thürer then links decisions and deliberation and argues that the governmental form of direct democracy is not limited to the fact of majority decisions but is codetermined by a free and fair and informed process of its transformation. Deliberation provides for the constantly necessary self-reflection, self-critique and self-renewal, a rationality and the transparency of thinking and action, the reflection of origin, the existence of opinions of others, the modesty of relativity and maybe even the correction of one's own opinion as well as the anticipating of long term effects of a political action.

The reality of the democratic structures in the process of European integration according to Thürer is a spectacular, deep and effective case of "constitutional engineering." This network of European institutions has yet to be openly analysed by legal science.

In the contexts of the European Union, it is a astonishing phenomenon that the principle of democracy has become a supranational form and, from a sociological perspective, has enabled the mastering of the globalization of the capitalist economy by rules of law and democracy-based controls. The text deals with the peculiarities of these supranationality influenced forms of the principle of democracy and with the striking paradox, that the European Union does not have democratically convincing structures. Despite these deflects, it is astonishing to observe that in a long term perspective, the creative potential of the supranationality of the European Union has prevailed and introduced new legal regimes, legal systems and a new type of organisation, which are by far more structured than other systems safeguarding peace.

The texts ends with an outlook on the potential of the history of creativity and productivity of a fundamental democratic deliberation in Europe as described. In that context, he advises Switzerland to be modest vis-à-vis the European Union and not only to focus on the alleged encroachments on popular rights, but to be open for inspiration in these new spaces of imagination and experience. Based upon the longstanding experience of Switzerland with the principle of democracy, Thürer ends with the question: are we not in for a new theory, integrating the manifest interplay of deliberative and voting democracy of the old constitutions of nation states, as well as with in the new supranational systems of European integration?

c) Text

You can find a scan (PDF) of the original text here:
E_2.8_THURER_Deliberative Demokratie

a) Background

Before entering into further details on the various chapters selected for this Anthology in the book The Sister Republics, Switzerland and the United States from 1776 to the Present, the following general informations: It is interesting to refer to the forword of the book to the long history of collecting works by Swiss authors of the Library of Congress. The Library aquired Thomas Jeffersons library in 1850, it received copies, annotated by Jefferson himself, of the works of two Swiss authors much admired by the Ex-president: The natural law theorists Emmerich de Vattel and Jean Jacques Burlamacqui. After the acquisition of Jeffersons books the library continued to collect Swiss books as well as maps and descriptions of Switzerland. According to the foreword official contacts between the library and Switzerland began in 1884 while the Librarian of Congress Ainsworth Rand Spofford commissioned George H. Böhmer as a special agent to visit European countries to arrange a publications exchange program. Böhmer reached Berne, the Swiss capital on 20th October 1984, and, according to the forword was buoyed in conversations with Swiss officials. They not only shared the eagerness of other European governments to exchange official publications; they also proposed to send the Library of Congress additional books. "As regards historical publications" Böhmer reported, "The government of Switzerland stands preeminent in her promise to supply as complete the collection as can be obtained - a library in itself - of the historical works of that republic". The historical works about Switzerland were especially welcome in the United States during the 1880ies because many Americans were becoming interested in new instruments of direct political democracy, the initiative and referendum which have been developed by Swiss. The reciprocal borrowing between the United States and Switzerland, according to the foreword continued to the First World War evidencing awareness of a common heritage of resistance to foreign tyranny. This was the background of the book of James Hutson The Sister Republics.. "There is no better time, the Library of Congress believes, to revive that venerable phrase and to illustrate the fruitful relationship which it described than on the occasion of the 700th anniversary of Swiss Independence and Freedom. The Library will celebrate with an exhibit opening in may 1991." ... "Since 1975 Switzerland and the United States have contributed much to each other, so much that we expect that readers of this publication and viewers of the exhibit will be surprised to find that so little of the story is known in this country."

A Special focus of this part of the Anthology is on the cultural exchanges and cultural encounters between Switzerland and the United States. According to James Hutson it is not immodest to say that we are talking about a special relationship. He writes in the introduction to the book at hand, that in 1776 the government of Switzerland known to its citizens as Eidgenossenschaft (community of the oath) had existed for almost 500 years. The Eidgenossenschaft was a Confederacy of 13 states called Cantons, which where republics of various sizes, some democratic, others aristocratic". Republics were rare in 1776 and had little company in 18th century Europe. As the introduction states, therefore, many Swiss welcomed the Declaration of Independence of the United States "since it ushered a soulmate into the community of nations." Republicanism was not the only bond between Switzerland and the United States. From 1776 on, political developments in one country often paralleled those in the other, and on important occasions served as a constitutional model for the others. First, according to James Hutson, the Amercian national constitution, the Articles of Confederation, was constructed on the Swiss model of a confederacy of some over sovereign states. Then, Americans repudiated confederal government in 1787 as impotent and unworkable and adapted a new federal constitution. The opponents of the new charter, the Anti Federalists argued that a Swiss style government was still a viable model which offered the best hope for the preservation of American liberty. The Swiss themselves repudiated confederate government in 1848 using many of the same arguments Americans had marshalled against it in 1787 and adapted a Federal constitution modelled after the American constitution of 1787. After the Civil War many American state and local governments adapted constitutional reforms borrowed from the Swiss. The initiative and referendum - which continues to this hour to give the politics of California and other influential states their distinctive tone. The institutional borrowing, according to James Hutson, between the United States and Switzerland ceased after the first World War. Not long afterwards Swiss and Americans ceased referring to each others countries as sister republics.

The author of the book James H. Hutson received his PhD in history from Yale University in 1964. He has been a member of the history department in Yale and William and Mary. Since 1982 he has been chief of the Libraries manuscript division. Dr. Hutson is the author of several books (see biography). We particularly draw the attention to a text written after World War II on the bombing of the Swiss city of Schaffhausen in April 1944 by American airplanes.

The editor has divided the book in various chapters, following the chronological order of the book and parallelizing it with the chronological and topical order of the part of the Americanization of Swiss law and legal culture of the Anthology. The book is a welcome addition to the views of the legal relationship between the United States and Switzerland by an American view. The book is vividly written and contains pictures. It is addressed to a broader public and contains a number of footnotes for further research. It is a short and coherent "red thread" (Roter Faden) of the history of the relationship from 1776 to about the first World War. The exhibition in the Library of Congress was shown in 1992 in the Schweizerische Landesbibliotehk (Swiss National Library)in Bern and later on in Geneva, Basel and Zurich. On that occasion, the book was translated into German with the title The Sister Republics: Die Schweiz und die Vereinigten Staaten von 1776 bis heute. Lucky are those, who could get hold of the original english text over the internet. The chapters of the book represented in the Anthology are Swiss and the American Revolution (text 2.1, Swiss and the American Constitution (2.5), Americans and the Swiss Constitution of 1848 (2.28), Swiss and the American Civil War (2.12), Swiss-American Peacemaking: The Alabama Affair and the League of Nations (2.16), and Swiss and American State Constitutions (2.18).

b) Summary

The text at hand is a chapter of the book The Sister Republics, Switzerland and the United States from 1776 to the present, which accompanied an exhibition in the Library of Congress opening in may 1991 to celebrate the 700th anniversary of Switzerland.

The chapter Swiss and the American Revolution starts with the following statement:

"The Swiss made a significant contribution to the creation of the American Republic. They furnished intellectual weapons to American statesmen and troops and ordnance to Washington's armies. So little is known, however, about their military contribution to the patriot cause that the Swiss can be considered the invisible men of the American Revolution, as anonymous as black Americans were until the scholarship of the past two decades uncovered their substantial participation in the achievement of American independence."

According to the chapter at hand the invisibility was due to the complexities of the immigration and due to the fact that the German speaking Swiss often were counted as "Germans". Many Swiss apparently came to the United States via other countries. According to Bernard Bailyn the mobility was "endemic in Southwestern Germany; throughout Rhine Valley and in parts of Switzerland"during the late 17th and the early 18th century. Swiss emigrants were preliminary Mennonites and members of other pacifist seats. The text argues that large numbers of Swiss were among the German speaking population in America. This was taken for granted since the most influential German -language newspaper at the time was published by Henri Johann Heinrich Miller (who was Swiss). Scholars consider Miller to be the single most influential person in enlisting Americas "Germans" in support of the independence of the United States. Miller had no scrouples against participation in parties against politics or against baring arms. He frequently used heroic man and events from Swiss history to generate support for the American cause. In connection with the mobilisation in 1768 of Sons of Liberty, Miller used William Tell as the principle Swiss son of liberty (Schweizerische Erz-Freiheitssohn) He, according to the text at hand, in his newspaper published a sentimental war story Das hölzerne Bein (the wooden leg) by the Swiss writer Salomon Gessner (1730-1788), in 1775 Miller formed a partnership in patriotic propaganda with a fellow Swiss, the reverend John Joachim Zubly, who has come to Philadelphia to represent Georgia at the Continental Congress. The text at hand testimates that among the allegedly particpitaing 30'000 "Germans" in baring arms for the United States during the revolutionary war as many as 10'000 must have been Swiss. The point made in the text is not that Germans and Swiss "won" the war for independence, only that the role in that conflict can not be overlooked. The text describes the skills of Swiss of making arms; in particular the activities of the Swiss artist and entrepreneur John Jakob Faes is extremely well documented. Faes was producing high quality iron products at Mount Hope. He made iron chains to obstruct the Hudson River and produced various kinds of ammunition, shells, casings and canons for Washingtons army. Faes armaments according to the text were far superior to Pennsylvania - made ordnance; Washington himself was interested in Faes operation, visiting him in Mount Hope on several occasions.

"The Swiss furnished American Revolutionary leaders with intellectual weapons every bit as potent as the products of Faesch's forges. The best known Swiss thinker of the Revolutionary period, Jean Jacques Rousseau, had little impacts on American statesmen. They were acquainted with some of his books, but his favourite topics were not relevant to their concerns. Rousseau's "celebration of primitive simplicity", a recent scholar has stressed, was "uncongenial for societies that throughout their histories had been trying desperately to escape from exactly that condition" Two other Swiss savants, Jean Jacques Burlamaqui and Emmerich de Vattel known today only to academic specialists, had substantial influence on American statesmen. Burlamaqui (1694-1748) was, like Rousseau, born in Geneva, but never deserted his native city. He was a respected member of the Geneva Council of State and a professor of ethics and natural law at the city's university. Vattel (1714-1767), a native of Neuchàtel, was a pupil of Burlamaqui. His major work, Principles of Natural Law, was published in French at Geneva in 1747 and translated into English the next year. Vattel's The Law of Nations, or the Principles of Natural Law ... was published in French in 1758 and then quickly translated into English."

Americans quoted Burlamaqui and Vattel frequently in the pamphlet warfare with British partisans which began in the 1760s. Thomas Jefferson according to James Hutson admired Burlamaqui in particular.

c) Text

You can find a scan (PDF) of the original text here:
A_2.1_HUTSON_Swiss and American Revolution

[The Influence of Switzerland on the American Constitution of 1787]

a) Background

The text at hand is a scholarly article published in Schweizerische Zeitschrift für Geschichte (Swiss Journal for Historical Studies) in 1988. It was written during diplomatic postings in New York and in the Swiss Embassy in Washington DC. Paul Widmer's text recalls the longstanding and special relationship between the United States and Switzerland in legal matters. The text is an example of the phenomenon of "how ideas travel". It identifies the potential influences of Switzerland and Swiss law and legal culture on the formation of the constitution in 1787 at the time of the creation of the United States. The subsequent influence of the American constitution on Switzerland up to 1848 was by far greater than the areas of influence of Switzerland on the American constitution in 1787.

Nevertheless, the influence is remarkable and interesting. Two factors played a major role: the writings and actions of founding father John Adams, later President of the United States, and the incontestable influence of the antifederalists - federalists according to Swiss terminology - in favour of a confederation. Switzerland had a parliamentary assembly in the 18th century composed of governmental representatives of the different sovereign Cantons. It had considerable visibility and influence on then emerging doctrines of democratic federalism. Whoever was about to draft and adopt a republican, federalist constitution was well advised to look at the republics in the Alps. In the early United States certain groups diligently undertook this effort. Three positions came simultaneously to the attention of the founding fathers. Among the federalists - the centralists according to Swiss terminology - Madison and Hamilton for instance studied the Swiss confederation in detail.  The antifederalists left the Swiss confederation aside and considered it unusable for a nation like the United States, in particular due to the size of the territory. The federalists studied it but were imprecise in their study of the Swiss circumstances. They adored the spirit of the inhabitants of the Alps. They used Switzerland as crown witness against centralisation and advocated the leaving of powers to the individual states. In contrast John Adams, the first vice president and second president of the United States, did not care for Switzerland as a whole. He used the parliamentary organisation of the individual Cantons to find in them arguments for a separation of powers. John Adams, above all, was responsible for the timely introduction of Swiss thinking to the American constitutional dialogue and discussion among the delegates to the constitutional convention in Philadelphia.

b) Summary

Paul Widmer expounds that those interested in finding the republican-federalist model in the 17th century in Europe could only turn to the Netherlands and to Switzerland. The Netherlands was discarded because of the American distrust of a strong aristocratic element. For federalists, the Dutch and the Swiss Confederation were too weak. The only democratic-aristocratic republic of some weight to which the United States could turn to was the Swiss Confederation. The Swiss influence was manifest on two levels: Indirectly by publications of Swiss individuals and directly by the nature of the Swiss Confederation. Among the Swiss individuals and persons at the time, Calvin, Rousseau, Burlamaqui and Emer de Vattel were widely read in North America. The effective influence of their writings was inferior to those of the British writers Hobbes, Locke and Blackstone. With regards to John Adams, according to Paul Widmer, it is not only known what he read but also what he thought about what he read about the Swiss Confederation. He had a different view of the persons cited.

The federalists, who set the tone in Philadelphia were against the Swiss model, because it had too weak a structure The antifederalists who criticized the draft of the new constitution from a radical democratic perspective looked to Switzerland, in particular to the Urschweiz, as well as to the texts of Rousseau as testimony of a free Alpine republic. John Adams who was neither federalist nor antifederalist was looking for arguments to defend his favourite project, the constitution of Massachusetts. He used elements of separation of powers and elements of a bicameral system on the level of federate states. In his main work, he carefully analysed the Swiss constitutional structure. In doing so, he drew attention to Switzerland and introduced her model into the US constitutional debate.

The proponents of a loose Swiss model always lost in the constitutional debates of the emerging United States. Yet, the testimony of Switzerland brought valuable arguments into the discussion of federalism. It is interesting to note that there is a marked influence of Switzerland on the issue of introducing and including a "Bill of Rights" into the constitution. George Mason, an admirer of the republican elements and the spirit in Switzerland, was the driving force and the author of these important amendments. The symbolic and methodological contribution in that field was important, partly democratic and motivated by the spirit of the inhabitants of Switzerland. This darig view of George Mason by Paul Widmer is critically commented by James Hutson in text 2.5.

c) Texts

You can find a scan (PDF) of the original text here:
A_2.2_WIDMER_Einfluss

[Deliberative and Voting Democracy, About the idea of democratic justice in the European tensions of state hood]

a) Background

The text at hand is an essay republished in volume 1 of Kosmopolitisches Staatsrecht (Cosmopolitan Public Law), Grundidee Gerechtigkeit (Fundamental Idea: Justice), the first volume of a systematic collection of the most important texts of Daniel Thürer in 2008. Volume 2 entitled, "Völkerrecht als Fortschritt und Chance (International Public Law as Progress and Opportunity), Fundamental Idea: Justice was published in 2009. The text describes and contrasts the dimension of deliberative democracy to the dimension of voting democracy. At the centre is the idea of "democratic justice" with the aspects decision and deliberation explored in the context of the intrinsic tensions in European integration in integrating the role of "democratic justice." The text is written from a fundamental, global and comparative perspective also seeking a role of the Swiss democratic experience in the process of European integration. The text argues for an unlocking or unleashing of the specific democratic potentials of national and supranational organisations such as the EU from the historic experiences with decision and deliberation in Europe at large.

Daniel Thürer is an emerite Professor of International Law, European Law and Comparative Constitutional Law at the University of Zurich. He is a leading analyst and commentator of the developments in the legal relationship of the EU law and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Counsel to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU.

b) Summary

Thürer establishes "democratic justice" as an element of constitutions of nations and as an instrument of international public law, with a crucial element of human rights being the basis of liberty, justice and peace in the world. The protection of the basic laws and human rights nowadays include the "right to democracy", which also has become a generally accepted element of the idea of justice. The United States, France and Switzerland were democratic states only in the nineteenth century. The principle of democracy after World War II has witnessed a triumphant success, the core idea of democracy always being that members of a community participate in the shaping of the polity based on the principle of equality. Thürer's reasoning is based on a normative and value based notion of democracy.

Thürer then describes and contrasts the interdependent dimensions of the "voting democracy" and "the deliberative democracy" – the right to elect the representative and the right to participate in the decisions on substance. In Switzerland experience collected in the use of direct-democratic instruments brought about an incomparable laboratory and field of experimentations of direct democracy amounting to an element of national identity.

He identifies the roots of democracy, such as the fight against autocrats and the idea that all citizens are equally enabled to reason political decisions, along with direct democracy as a manifestation of political freedom. The negative potentials and the shadows of the realisations of the principle are addressed, for instance, in the area of foreign policy in which democratizing competence and judgement are often suboptimal. The "element of deliberative democracy" is introduced with the three dangers in the background - "tyranny of the majority", "enlightenment" and "totalitarian temptation" – is characterised by three elements of deliberation: capacity, responsibility and reciprocity. Thürer then links decisions and deliberation and argues that the governmental form of direct democracy is not limited to the fact of majority decisions but is codetermined by a free and fair and informed process of its transformation. Deliberation provides for the constantly necessary self-reflection, self-critique and self-renewal, a rationality and the transparency of thinking and action, the reflection of origin, the existence of opinions of others, the modesty of relativity and maybe even the correction of one's own opinion as well as the anticipating of long term effects of a political action.

The reality of the democratic structures in the process of European integration according to Thürer is a spectacular, deep and effective case of "constitutional engineering." This network of European institutions has yet to be openly analysed by legal science.

In the contexts of the European Union, it is a astonishing phenomenon that the principle of democracy has become a supranational form and, from a sociological perspective, has enabled the mastering of the globalization of the capitalist economy by rules of law and democracy-based controls. The text deals with the peculiarities of these supranationality influenced forms of the principle of democracy and with the striking paradox, that the European Union does not have democratically convincing structures. Despite these deflects, it is astonishing to observe that in a long term perspective, the creative potential of the supranationality of the European Union has prevailed and introduced new legal regimes, legal systems and a new type of organisation, which are by far more structured than other systems safeguarding peace.

The texts ends with an outlook on the potential of the history of creativity and productivity of a fundamental democratic deliberation in Europe as described. In that context, he advises Switzerland to be modest vis-à-vis the European Union and not only to focus on the alleged encroachments on popular rights, but to be open for inspiration in these new spaces of imagination and experience. Based upon the longstanding experience of Switzerland with the principle of democracy, Thürer ends with the question: are we not in for a new theory, integrating the manifest interplay of deliberative and voting democracy of the old constitutions of nation states, as well as with in the new supranational systems of European integration?

c) Text

You can find a scan (PDF) of the original text here:
E_2.8_THURER_Deliberative Demokratie

a) Background

Before entering into further details on the various chapters selected for this Anthology in the book The Sister Republics, Switzerland and the United States from 1776 to the Present, the following general informations: It is interesting to refer to the forword of the book to the long history of collecting works by Swiss authors of the Library of Congress. The Library aquired Thomas Jeffersons library in 1850, it received copies, annotated by Jefferson himself, of the works of two Swiss authors much admired by the Ex-president: The natural law theorists Emmerich de Vattel and Jean Jacques Burlamacqui. After the acquisition of Jeffersons books the library continued to collect Swiss books as well as maps and descriptions of Switzerland. According to the foreword official contacts between the library and Switzerland began in 1884 while the Librarian of Congress Ainsworth Rand Spofford commissioned George H. Böhmer as a special agent to visit European countries to arrange a publications exchange program. Böhmer reached Berne, the Swiss capital on 20th October 1984, and, according to the forword was buoyed in conversations with Swiss officials. They not only shared the eagerness of other European governments to exchange official publications; they also proposed to send the Library of Congress additional books. "As regards historical publications" Böhmer reported, "The government of Switzerland stands preeminent in her promise to supply as complete the collection as can be obtained - a library in itself - of the historical works of that republic". The historical works about Switzerland were especially welcome in the United States during the 1880ies because many Americans were becoming interested in new instruments of direct political democracy, the initiative and referendum which have been developed by Swiss. The reciprocal borrowing between the United States and Switzerland, according to the foreword continued to the First World War evidencing awareness of a common heritage of resistance to foreign tyranny. This was the background of the book of James Hutson The Sister Republics.. "There is no better time, the Library of Congress believes, to revive that venerable phrase and to illustrate the fruitful relationship which it described than on the occasion of the 700th anniversary of Swiss Independence and Freedom. The Library will celebrate with an exhibit opening in may 1991." ... "Since 1975 Switzerland and the United States have contributed much to each other, so much that we expect that readers of this publication and viewers of the exhibit will be surprised to find that so little of the story is known in this country."

A Special focus of this part of the Anthology is on the cultural exchanges and cultural encounters between Switzerland and the United States. According to James Hutson it is not immodest to say that we are talking about a special relationship. He writes in the introduction to the book at hand, that in 1776 the government of Switzerland known to its citizens as Eidgenossenschaft (community of the oath) had existed for almost 500 years. The Eidgenossenschaft was a Confederacy of 13 states called Cantons, which where republics of various sizes, some democratic, others aristocratic". Republics were rare in 1776 and had little company in 18th century Europe. As the introduction states, therefore, many Swiss welcomed the Declaration of Independence of the United States "since it ushered a soulmate into the community of nations." Republicanism was not the only bond between Switzerland and the United States. From 1776 on, political developments in one country often paralleled those in the other, and on important occasions served as a constitutional model for the others. First, according to James Hutson, the Amercian national constitution, the Articles of Confederation, was constructed on the Swiss model of a confederacy of some over sovereign states. Then, Americans repudiated confederal government in 1787 as impotent and unworkable and adapted a new federal constitution. The opponents of the new charter, the Anti Federalists argued that a Swiss style government was still a viable model which offered the best hope for the preservation of American liberty. The Swiss themselves repudiated confederate government in 1848 using many of the same arguments Americans had marshalled against it in 1787 and adapted a Federal constitution modelled after the American constitution of 1787. After the Civil War many American state and local governments adapted constitutional reforms borrowed from the Swiss. The initiative and referendum - which continues to this hour to give the politics of California and other influential states their distinctive tone. The institutional borrowing, according to James Hutson, between the United States and Switzerland ceased after the first World War. Not long afterwards Swiss and Americans ceased referring to each others countries as sister republics.

The author of the book James H. Hutson received his PhD in history from Yale University in 1964. He has been a member of the history department in Yale and William and Mary. Since 1982 he has been chief of the Libraries manuscript division. Dr. Hutson is the author of several books (see biography). We particularly draw the attention to a text written after World War II on the bombing of the Swiss city of Schaffhausen in April 1944 by American airplanes.

The editor has divided the book in various chapters, following the chronological order of the book and parallelizing it with the chronological and topical order of the part of the Americanization of Swiss law and legal culture of the Anthology. The book is a welcome addition to the views of the legal relationship between the United States and Switzerland by an American view. The book is vividly written and contains pictures. It is addressed to a broader public and contains a number of footnotes for further research. It is a short and coherent "red thread" (Roter Faden) of the history of the relationship from 1776 to about the first World War. The exhibition in the Library of Congress was shown in 1992 in the Schweizerische Landesbibliotehk (Swiss National Library)in Bern and later on in Geneva, Basel and Zurich. On that occasion, the book was translated into German with the title The Sister Republics: Die Schweiz und die Vereinigten Staaten von 1776 bis heute. Lucky are those, who could get hold of the original english text over the internet. The chapters of the book represented in the Anthology are Swiss and the American Revolution (text 2.1, Swiss and the American Constitution (2.5), Americans and the Swiss Constitution of 1848 (2.28), Swiss and the American Civil War (2.12), Swiss-American Peacemaking: The Alabama Affair and the League of Nations (2.16), and Swiss and American State Constitutions (2.18).

b) Summary

The text at hand is a chapter of the book The Sister Republics, Switzerland and the United States from 1776 to the present, which accompanied an exhibition in the Library of Congress opening in may 1991 to celebrate the 700th anniversary of Switzerland.

The chapter Swiss and the American Revolution starts with the following statement:

"The Swiss made a significant contribution to the creation of the American Republic. They furnished intellectual weapons to American statesmen and troops and ordnance to Washington's armies. So little is known, however, about their military contribution to the patriot cause that the Swiss can be considered the invisible men of the American Revolution, as anonymous as black Americans were until the scholarship of the past two decades uncovered their substantial participation in the achievement of American independence."

According to the chapter at hand the invisibility was due to the complexities of the immigration and due to the fact that the German speaking Swiss often were counted as "Germans". Many Swiss apparently came to the United States via other countries. According to Bernard Bailyn the mobility was "endemic in Southwestern Germany; throughout Rhine Valley and in parts of Switzerland"during the late 17th and the early 18th century. Swiss emigrants were preliminary Mennonites and members of other pacifist seats. The text argues that large numbers of Swiss were among the German speaking population in America. This was taken for granted since the most influential German -language newspaper at the time was published by Henri Johann Heinrich Miller (who was Swiss). Scholars consider Miller to be the single most influential person in enlisting Americas "Germans" in support of the independence of the United States. Miller had no scrouples against participation in parties against politics or against baring arms. He frequently used heroic man and events from Swiss history to generate support for the American cause. In connection with the mobilisation in 1768 of Sons of Liberty, Miller used William Tell as the principle Swiss son of liberty (Schweizerische Erz-Freiheitssohn) He, according to the text at hand, in his newspaper published a sentimental war story Das hölzerne Bein (the wooden leg) by the Swiss writer Salomon Gessner (1730-1788), in 1775 Miller formed a partnership in patriotic propaganda with a fellow Swiss, the reverend John Joachim Zubly, who has come to Philadelphia to represent Georgia at the Continental Congress. The text at hand testimates that among the allegedly particpitaing 30'000 "Germans" in baring arms for the United States during the revolutionary war as many as 10'000 must have been Swiss. The point made in the text is not that Germans and Swiss "won" the war for independence, only that the role in that conflict can not be overlooked. The text describes the skills of Swiss of making arms; in particular the activities of the Swiss artist and entrepreneur John Jakob Faes is extremely well documented. Faes was producing high quality iron products at Mount Hope. He made iron chains to obstruct the Hudson River and produced various kinds of ammunition, shells, casings and canons for Washingtons army. Faes armaments according to the text were far superior to Pennsylvania - made ordnance; Washington himself was interested in Faes operation, visiting him in Mount Hope on several occasions.

"The Swiss furnished American Revolutionary leaders with intellectual weapons every bit as potent as the products of Faesch's forges. The best known Swiss thinker of the Revolutionary period, Jean Jacques Rousseau, had little impacts on American statesmen. They were acquainted with some of his books, but his favourite topics were not relevant to their concerns. Rousseau's "celebration of primitive simplicity", a recent scholar has stressed, was "uncongenial for societies that throughout their histories had been trying desperately to escape from exactly that condition" Two other Swiss savants, Jean Jacques Burlamaqui and Emmerich de Vattel known today only to academic specialists, had substantial influence on American statesmen. Burlamaqui (1694-1748) was, like Rousseau, born in Geneva, but never deserted his native city. He was a respected member of the Geneva Council of State and a professor of ethics and natural law at the city's university. Vattel (1714-1767), a native of Neuchàtel, was a pupil of Burlamaqui. His major work, Principles of Natural Law, was published in French at Geneva in 1747 and translated into English the next year. Vattel's The Law of Nations, or the Principles of Natural Law ... was published in French in 1758 and then quickly translated into English."

Americans quoted Burlamaqui and Vattel frequently in the pamphlet warfare with British partisans which began in the 1760s. Thomas Jefferson according to James Hutson admired Burlamaqui in particular.

c) Text

You can find a scan (PDF) of the original text here:
A_2.1_HUTSON_Swiss and American Revolution

[The Influence of Switzerland on the American Constitution of 1787]

a) Background

The text at hand is a scholarly article published in Schweizerische Zeitschrift für Geschichte (Swiss Journal for Historical Studies) in 1988. It was written during diplomatic postings in New York and in the Swiss Embassy in Washington DC. Paul Widmer's text recalls the longstanding and special relationship between the United States and Switzerland in legal matters. The text is an example of the phenomenon of "how ideas travel". It identifies the potential influences of Switzerland and Swiss law and legal culture on the formation of the constitution in 1787 at the time of the creation of the United States. The subsequent influence of the American constitution on Switzerland up to 1848 was by far greater than the areas of influence of Switzerland on the American constitution in 1787.

Nevertheless, the influence is remarkable and interesting. Two factors played a major role: the writings and actions of founding father John Adams, later President of the United States, and the incontestable influence of the antifederalists - federalists according to Swiss terminology - in favour of a confederation. Switzerland had a parliamentary assembly in the 18th century composed of governmental representatives of the different sovereign Cantons. It had considerable visibility and influence on then emerging doctrines of democratic federalism. Whoever was about to draft and adopt a republican, federalist constitution was well advised to look at the republics in the Alps. In the early United States certain groups diligently undertook this effort. Three positions came simultaneously to the attention of the founding fathers. Among the federalists - the centralists according to Swiss terminology - Madison and Hamilton for instance studied the Swiss confederation in detail.  The antifederalists left the Swiss confederation aside and considered it unusable for a nation like the United States, in particular due to the size of the territory. The federalists studied it but were imprecise in their study of the Swiss circumstances. They adored the spirit of the inhabitants of the Alps. They used Switzerland as crown witness against centralisation and advocated the leaving of powers to the individual states. In contrast John Adams, the first vice president and second president of the United States, did not care for Switzerland as a whole. He used the parliamentary organisation of the individual Cantons to find in them arguments for a separation of powers. John Adams, above all, was responsible for the timely introduction of Swiss thinking to the American constitutional dialogue and discussion among the delegates to the constitutional convention in Philadelphia.

b) Summary

Paul Widmer expounds that those interested in finding the republican-federalist model in the 17th century in Europe could only turn to the Netherlands and to Switzerland. The Netherlands was discarded because of the American distrust of a strong aristocratic element. For federalists, the Dutch and the Swiss Confederation were too weak. The only democratic-aristocratic republic of some weight to which the United States could turn to was the Swiss Confederation. The Swiss influence was manifest on two levels: Indirectly by publications of Swiss individuals and directly by the nature of the Swiss Confederation. Among the Swiss individuals and persons at the time, Calvin, Rousseau, Burlamaqui and Emer de Vattel were widely read in North America. The effective influence of their writings was inferior to those of the British writers Hobbes, Locke and Blackstone. With regards to John Adams, according to Paul Widmer, it is not only known what he read but also what he thought about what he read about the Swiss Confederation. He had a different view of the persons cited.

The federalists, who set the tone in Philadelphia were against the Swiss model, because it had too weak a structure The antifederalists who criticized the draft of the new constitution from a radical democratic perspective looked to Switzerland, in particular to the Urschweiz, as well as to the texts of Rousseau as testimony of a free Alpine republic. John Adams who was neither federalist nor antifederalist was looking for arguments to defend his favourite project, the constitution of Massachusetts. He used elements of separation of powers and elements of a bicameral system on the level of federate states. In his main work, he carefully analysed the Swiss constitutional structure. In doing so, he drew attention to Switzerland and introduced her model into the US constitutional debate.

The proponents of a loose Swiss model always lost in the constitutional debates of the emerging United States. Yet, the testimony of Switzerland brought valuable arguments into the discussion of federalism. It is interesting to note that there is a marked influence of Switzerland on the issue of introducing and including a "Bill of Rights" into the constitution. George Mason, an admirer of the republican elements and the spirit in Switzerland, was the driving force and the author of these important amendments. The symbolic and methodological contribution in that field was important, partly democratic and motivated by the spirit of the inhabitants of Switzerland. This darig view of George Mason by Paul Widmer is critically commented by James Hutson in text 2.5.

c) Texts

You can find a scan (PDF) of the original text here:
A_2.2_WIDMER_Einfluss

a) Background

The text at hand is the first chapter of leading treatise on fundamental rights in Switzerland, first published in 1970. Peter Saladin, who was later a Professor at the University of Bern and died much too early in 1997, wrote the text during post graduate studies in comparative law at the University of Michigan Law School. It is not a coincidence that the book begins with a chapter on freedom of religion. First, it was dear to Saladin and his personal faith. Secondly, freedom of religion both has been a constituting freedom in the United States and in Switzerland, albeit shaped by a very different history. While freedom of religion has been a mainstay in US constitutional law restricting state intervention, it was subject to stronger governmental involvement in Switzerland in the wake of the reformation, state religion and the expulsion of Christian minorities. The chapter expounds the history of religious freedom in Switzerland, showing that it was largely subject to governmental control and limited by law. Art. 44 of the Swiss Constitution of 1848 introduced a formal guarantee of freedom of religion. Yet, subsequent case law continued to be coined by the tradition of faith defined by public authorities (Staatskirchentum), allowing for substantial restrictions of freedom of religion. It is at this point that Saladin refers to the case law of the United States Supreme Court, arguing in favour of the compelling interest test and thus stricter requirements to be met for governmental restrictions of freedom of religion in Switzerland. The chapters stands as an example of a then increasing influence of the case law of the United States Supreme Court to which Swiss authors would look for guidance in shaping the body and system of fundamental rights protection in Switzerland at the time. It should be recalled that prior to World War II, human rights protection was less prominent, and gained prominence and profile during the 1970s and 1980s when the Swiss Federal Court recognised implied protection of human rights under constitutional law. Saladin was instrumental in bringing about enhanced protection, together with the writings of his Berne colleague Jörg Paul Müller. They pioneered what eventually became the catalogue of fundamental rights in the Federal Constitution of 1999. The influence of US constitutional law was strong in this and the subsequent generation of leading lawyers, many of whom had been exposed to US constitutional law during their studies in leading US Universities. Walter Haller dedicated a full monograph to United States constitutional law, explain the functioning of it to European readers. US constitutional doctrine and teaching also influenced methods of teaching. It is in the field of fundamental rights that in that period, teaching by way of case law became prominent, narrowing the gap between the traditions of civil and common law. Peter Saladin was educated at the University of Basel a predominately protestant city. Upon return from the Unite States, he held governmental positions before taking up a professorship in Basel and eventually becoming a Professor of Public Law at the University of Berne. His main focus, besides constitutional law, were principles of administrative law and federate structures. He was among the first to address ecological concerns and the impact of globalization publishing a provocative book discussing the allegedly increasing redundancy of states (Warum noch Staaten?  in defence of the nation state.

b) Summary

The text at hand is a chronological analysis of the cases of the Swiss Federal Tribunal as regards to freedom or revision. The analysis is a part of an overall and bottom up analysis of the evolution of constitutional fundamental rights in post World War II times, it is strongly inspired by conceptual cases of supreme court of the United States.

c) Text

You can find a scan (PDF) of the original text here:
A_2.41_SALADIN_Religionsfreiheit

This noteintroduces you to choice of vertical (the Erie doctrine) and horizontal choice of law. I should warn you that along with the "arising under" material and preclusion, I think this is the most intellectually challenging aspect of the course. Therefore, do not be surprised if you find this hard... it is hard!

You may want to delay reading the portions on horizontal choice of law till we actually get there in the course.

Consider this hypo:

Hypo VIII-1: John Gage (residing in Boston, MA) sues Diana Murphy (residing in LA, CA) for $1,000,000 for breaching a contract that they made in California - Murphy offered Gage 1 million dollars for "one night with your husband" to be enjoyed in Boston. Gage agreed, Murphy has her night of passion, but Murphy did not pay. Murphy has a defense that the loan violated California law against the enforceability of meretricious contracts, but under Massachusetts law such contracts are enforceable. Murphy lives in California and visits Massachusetts once a week. In which of the following courts can the suit by brought: the federal court for the District of Massachusetts, the federal court for the Central District of California (covering LA), Massachusetts state court, or the California state court?

Its answer - relating to SMJ and PJ - does not address a further question: what law will apply in any of the courts in which it can be brought?

In fact, there are two sets of questions. First, assume the case is brought in federal court. Will the federal court apply federal law or state law? In fact, as we will see, to some elements of the case the court will apply federal law and to some state law; sorting out which is the function of vertical choice of law, more commonly known as the Erie doctrine.

Second, suppose he can sue in Massachusetts state court. Will that court apply Massachusetts or California law? This is a question of horizontal choice of law. This is an extremely complex subject, of which I will only give you a small taste in this course - it is covered in more depth in some of the 1L international courses and Prof. Singer teaches an upper year course devoted to the subject.

Indeed, life gets more complicated. Suppose he sues in Massachusetts federal court. Now we have both a vertical and horizontal choice of law question combined. On what issues will the court apply state law rather than federal law? As to those issues does it apply Massachusetts or California state law?

We will try to take these issues one-by-one.

I. Vertical Choice of Law, more commonly known as the "Erie" doctrine

In this portion of the course, there are a few main questions we will try to answer:

How much of this issue is controlled by the U.S. Constitution?

How do you determine which issues to apply state law to and which issues to apply federal law to (we will spend most of our time on this, there is a progression of cases from Erie on)?
NOTE: I will save the Supreme Court's most recent Erie case, Shady Grove, for later in the course when we do class actions because it will be incomprehensible wihtout understanding a little about class action law.

If a federal court determines it needs to apply state law on an issue of a particular state - say Massachusetts - how does it determine what the law of that state is?

II. Horizontal Choice of Law

Much of the common law first year subjects (contract, property, torts) are devoted to teaching you about the conflicting case law on particular subjects between different states. In torts, does the state recognize negligent infliction of emotional distress as a tort? Does the breach of a contract get you consequential damages (Hadley v. Baxendale)? Therefore, states frequently disagree. As a result, it will be important to know which state's law to apply.

The early approach to this issue in the U.S. was encapsulated in the Restatement (First) on Conflicts of Law (1953) approach. It had different rules for different common law subjects, but for torts the rule was: look to law of the place of the wrong. What does that mean? "The place of the wrong is the state where the last event necessary to make an actor liable for an alleged tort takes place." At the same time, the Restatement instructs that: "All matters of procedure are governed by the law of the forum."

We will use the Alabama Great Southern Railroad Co. v. Carroll case to understand how this Restatement (First) approach worked. We will also use it to explore the approach's theoretical underpinnings, and understand why many became disenchanted with the approach (though it is still in place in some states).

We will then explore the more modern, interest-balancing approach to choice of law encapsulated in the Restatement (Second) on Conflicts of Law. The case we will use to show the operation of this approach is Schultz v. Boy Scouts of America. I warn you the case is extremely complex. I use it in part because of the complexity, to show you how much more standard-like the Restatement (Second) approach is. I do not, however, expect you to master the Restatement (Second) approach. That is what the upper-year course is for.

Instead I just want you to get a feel for it, and its benefits and drawbacks over the Restatement (First) approach.

Herbert Lüthy was a Swiss historian and author. He belongs with Carl Jacob Burckhardt, Jean Rudolf von Salis and Karl Schmid to the prominent personalities of intellectual life in the German speaking part of Switzerland in the second half of the twentieth century.

Lüthy was born in 1918 in Basel, the fifth son of the India-missionary Ernst Lüthy-Dettwyler. He studied history, Romance languages and French literature in Paris, Zurich and Geneva. He obtained his doctoral degree in 1942 with Hans Nabholz in Zurich. After that Lüthy published widely in economic history and in journalism.  From 1946 to 1958 he worked as an independent publicist and historian in Paris. After his habilitation in 1958 he was named Professor for General and Swiss History in German Language at the Swiss Institute of Technology in Zurich. In 1971 he continued as a professor at the University of Basel, where he was active until he was emerited in 1980. Afterwards among others he was a member of the board of the association editing Schweizer Monatshefte (Swiss Monthly) in which, since the sixties, he had published various essays including "Die Schweiz als Antithese" (Switzerland as antithesis) in 1961. Lüthy was honored many times for his eminent achievements. He died in Basel in November 2002.    

From 1942 to 1944 Lüthy, among others, wrote the weekly chronicle of World War II for the "St. Galler Tagblatt." In his years in Paris he was the correspondent of the newspaper "Tat" twice in a year; since 1949 he wrote more and more for international publications ("Der Monat", Berlin, "Preuves", Paris, "Encounter", London, "Commentary", New York and others). In 1954 he published the book Frankreichs Uhren gehen anders (The watches of France tick differently), which became the most important foreign-written publication in post-World War II France. He was well known in German cultural life for his translations of a selection of essays by Michel de Montaigne (1953). During 1959 and 1969 his two volumes, Banking and in History of Banking and Finance La Banque Protestante en France de la Révocation de l'Edit de Nantes à la Révolution (1685-1794) were published, and became a book of reference.

His written work was edited, introduced and commented in seven volumes.

Litertature on Herbert Lüthy see: http://www.herberthluethy.ch

References: http://www.herberthluethy.ch

I. Thomas Cottier & Jens Drolshammer, Anthology of Swiss Legal Culture, General Introduction

I. Purposes and Goals 

The Anthology of Swiss legal culture offers a collection of relevant texts made available in the original language or in English translation, providing contextual background. The very purpose of the project is to make these texts available to a wider community of legal scholars and practising lawyers on line. Swiss law is mainly dealt with in German, French and Italian, and much of it thus remains not accessible to the World at large. Many do not have access to the rich legal tradition of federalist and democratic Switzerland with its legal institutions strongly embedded in continental European tradition, but also with its succinct institutions rooted in direct democracy and a long standing communitarian tradition. We hope that the collection will facilitate access to those taking an interest Switzerland and her legal culture and particularities beyond black letter law and the law on the books. The collection offers insights into contributions originating in this country to legal developments in general. This angle is predominant up to World War II. Up to this point in history, there was a remarkable influence on the foundations of public international law. Switzerland, the first multilingual federacy and democracy largely modelled upon the US Constitution and given its geographical location in the middle of Europe, was strongly exposed to international relations and was able to develop and active role in the early days of the Republic. It offered a model for European Integration. At the same time, Switzerland ever since was exposed to foreign legal culture, in particular German, French and Italian, based upon shared precepts of Roman law.

Overall, these influences have been strong. The collection thus mainly offers insights into the reception of developments and trends originating abroad, both in Europe and the United States in the process of Europeanization and Globalization. It is predominant angle in post-World War II developments. It informs  a majority of texts. The selection of texts was a difficult one. Firstly, we have been seeking for seminal texts which have been of lasting impact and influence to legal and political developments. Such texts obviously are not numerous, and impact assessment anyway is not established in the field. Many of the texts, including our own owns, serve the purposes of informing the reader on legal developments, emerging ideas and concepts which formed part of the debate at different stages of legal developments and the legal discourse relating to Switzerland. We hope that the collection will assist scholars in all the field of humanities, in particular law, political science and history, in better understanding Swiss legal culture with its intricate linkages to European law and strong exposition to international law in a country open to economic globalization and keen to maintain its own identities and culture at the same time.

Yet, our ambition goes beyond this point: the law in Switzerland and in many other countries in Europe is by and large still or again taught and dealt with at Universities and Law Schools in the positivist tradition. Students are exposed to the codes, the statutes and regulation and to case law of the courts. The emphasis mainly and often is on the rules and their impact, and less on underlying motives and where these particular rules do come from. Legal history and inquiries how ideas travel no longer plays the role it had in explaining the advent of the codes and of modern constitutionalism. Philosophy is relegated and hardly relevant in passing the bar exam. The focus, in these exams, is on positive domestic law and knowledge. Much less attention is paid to the underlying sources and trends which brought about these rules, both of domestic and foreign origin. Much less attention also is paid to the realities of the law, underlying problems and challenges and how these relate to other disciplines, in particular economics, political science and history. Empirical research and linkages to economics and political science are still in their beginnings.

Much less attention also is paid to international law and even European law as these subjects are considered of a lesser relevance in daily life and practical work. These tenets also coin the life at Swiss and other European Lasw Faculties. Students lack access to texts which help them to understand the influence, both domestic and foreign, and which inform the genesis and the life of the law. In particular they often fail to be exposed to the influence of, and on, other legal orders, in particular the impact globalization and Europeanization of domestic law. They fail to be exposed to the influence of international law, in particular international economic law on domestic law, either directly or indirectly. But they  also fail to realise the impact of Swiss law on other legal orders, or the impact of these other orders on Swiss law. Yet, all these factors constitute and compose what we call legal culture: the underlying motives, the people and actor, the relevant institutions and how they work in day to day operations. To put it in metaphorical terms, it sails under the flag of the eminent American lawyer Karl Llewellyn: "see it fresh - see it whole - see it how it works". The specific features of thought and action in legal processes are often dependent at the meta-level on a specific mind-set open to globalization, which applies a motivational position that favours the exploration of the legal process in globalization and a motivational drive inspired by curiosity. "See it fresh" challenges us to see it in an open, undisguised and new way. "See it whole" means we should see it impartially and holistically. T, and - this is key to the whole text oriented and text based approach issue.  - "See it as it works" calls on us to understand the functional requirements and operation of the legally relevant social reality in the process of globalization, internationalization and Europeanization of Swiss law. The collection makes a modest attempt to fill this lacuna.

 II. Basic Structure

The Anthology is conceived in a manner that scholars and students may easily find relevant texts the relevant background and information on authors. Introductory texts facilitate access and understanding, and summaries are available for the readers not familiar with the full text which is attached in the form of PDFs. All the texts are reprinted as original texts including the footnotes and lists of literature, in general "full texts", in a few exceptions "excerpts". Internet and the modern data bases offer new possibilities which will revolutionise education and work with materials. It also allows subsequent addendum and expansion of the Anthology. As we go along, new texts will be added with a view to assess the contribution of Swiss law and legal culture, and corresponding foreign influences, in the different branches of law. The Anthology attempts to enrich and combine the core of the texts with areas and layers of knowledge accessible and complimentary tools such as additional bibliographical information and detailed biographies of the authors. In order to raise the awareness of and to increase the accessibility dealing with the of the processes under discussion herein, the Anthology uses various tools to situate the texts found, such as a process adequate table of contents with a specific substructure, a standardized presentation and explanation of the texts with short comments under the headings of introductory chapters offering background and asummary. The Anthology offers  non-footnoted general introductions using comparable table of contents. To some extent, these various tools attempt to compensate, and to same extent offset, the lack of coherent and conceptual scholarly analysis of the processes described and used as a driving force of the evolution in particular of the post-World War II period up to today.

The Anthology thus serves non-Swiss as well as Swiss users.. It is not limited to lawyers, the holistic approach proposed and the state-of-the-art-interdisciplinarity advocated should interest persons from other academic disciplines. Various texts are addressed to legislators, judges, legal and government officials as well as practitioners and cater for interests of various legal professions. We hope that they all may develop an interest and benefit from the texts and comments included.

III. The Selection of Texts

The working hypothesis for the Swissness of the selection of the texts in the Anthology can be characterized succinctly as follows: we do not use dogmatic and rigid selection criteria. The majority of the texts deal with Swiss law and legal culture. This means that the texts describe and analyse complimentary processes from different perspectives:  the "travelling" from and the "impacts" of Swiss law and legal culture outside of Switzerland, or, as is the case  - with  in the majority of the texts  - the "travelling" to and the "impacts" on Swiss law and legal culture in Switzerland. In the absence of accepted concepts of "culture" in general and "legal culture" in specifics and with a curious mind we include some special cases of attribution of Swissness of the texts.

With a few exceptions, the texts were written by Swiss based or related authors. A minority of texts are official documents such as documents of the federal administration, court judgments or expert opinions. Law professors have written the majority of texts in the parts on international law, Europeanization as well as Globalization. A remarkable number in the part of Americanization have been written by practitioners, some of them having or having had double careers in academia and in practice.

IV. Bibliographical references

It is an important function of this Anthology to institute a platform of knowledge for further information and research, and hopefully we hope it will find its proper and interested users. The general bibliographical references are an important supplementary element of the Anthology. They convey a platform for further information and research. The texts included in the Anthology are of course footnoted and contain specific lists of literature.

V. Biographies of authors

There is no law and legal culture without lawyers. The biographies contained in the Anthology show the backgrounds, educations, professional activities and visions of the authors writing the texts in the Collection. The biographies moreover contain a series of contextual elaborations and short descriptions of authors' further works. of the authors and are of help means  of when possible, websites by their use ofand links are provided to access further information about the authors.  The biographies are an integral to the anthology's intended functionality and have been included as valuable, knowledge-generating tools.  The detailed biographies of all the authors are an invaluable source of various aspects of the personalities involved in describing and analysing the processes of Swiss law and Swiss legal culture. Every text should be read in conjunction with the respective biography which is readily accessible by a link to the text. The Anthology attempts to apply a certain homogeneity and comparability for all biographies concerned. A number of biographies nowadays - the sources are identified - are Wikipedia based biographies. Some biographies were submitted by the respective author.

VI. Work in Progress

The Anthology is work in progress. It is the result of a long and tedious search for factual and textual evidences of the contribution to international law and the processes of Americanization, Europeanization and Globalization of that have shaped Swiss law and legal culture.  The result is patchy, unsystematic, incoherent and incomplete, At this stage, we have been focusing on the role of Swiss legal culture in the formation of public international law throughout different periods. We focus in particular on developments since World War II which brought about watersheds of changes with the breakdown of nation states and the emergence of European integration and law. We equally focus on the underlying relationship of Swiss and US law and the impact the latter had, often disguised, on Swiss law in recent decades. We focus on the process of globalization and how Switzerland and Swiss law and legal culture have responded to these challenges. We hope to add additional clusters in due course on history of law and comparative law, constitutional law, private and commercial law, penal law and private international law including international arbitration. We hope that the present collection encourages young scholars to take up these topics and join the legal culture club out of which this project emerged. The website offers possibilities for interaction and participation. We hope encouraging others to join in and contribute to the body of texts included in the Anthology in due course.

VII. Supporting Teaching,  Research  and Interoperatibility

The Anthology thus is a tool for further work and academic endeavours in teaching and research. It offers the possibility to engage students in discussions on seminal and informational texts underlying and influencing legal developments beyond positive law. It allows for easy access and sharing of information. It offers facilitated access to texts also for the purpose of research. It allows taking into account appropriate texts in research. And foremost, we hope that it will encourage scholars and practising lawyers to engage in their in the search for comparable texts in their respective fields, which could be added to the Anthology as a living process.

In using the Anthology, readers should have an open, untraditional and non-elitist mind-set. We are dealing with modern methods of knowledge generation and knowledge management. It would be by far too narrow to view and judge the Anthology merely from a perspective of  a traditional collection of texts. Using metaphors, the Anthology is a contribution to the weaving of a complex carpet tapestry of cultural encounters and cultural exchanges in law and legal culture. The Anthology situates the texts found as objects trouvées in their broader context from a dynamic and evolutionary perspective in particular in dealing with the emerging new world order after World War II. The Anthology thus attempts to increase the awareness and the accessibility of legal and cultural knowledge and caters to a variety of potential uses common and state of the art to modern knowledge generation and knowledge management.

The Anthology has in mind the idea and vision of a college of internationally-minded lawyers. and their networking potential. The Anthology may assist in bringing about comparability of different legal orders and common backgrounds, assessing differences and commonalities in legal cultures. It may provide insights, to some extent, into the competitiveness of different legal orders and cultures and how they interface and fare. The recent Swiss experiences made in interacting with US law in the context of financial services demonstrate the need for enhanced and better understanding of different legal cultures. These experiences show that it is important to look beyond black letter law in order to anticipate and assess the potential impact of foreign law. The Anthology may thus make a contribution to a better understanding of the underpinnings of the Swiss legal culture and thus to the interoperability of Swiss law with other legal orders. This is important both in practical terms as well as from an academic point of view.

In conclusion, the Anthology is meant to be a starting platform of knowledge as a particular mis-en-scène of the legal dimensions of the historic process. It is meant to contribute to access, open up and to establish a Denkraum" (Aby Warburg) for further academic and practical legal work. The Anthology does not pretend to present a theory or a theoretical framework of structured sets of information. It is a mere organized aggregation of information and has the mere and primary function of a tool facilitating further observations and analysis of the topics and therefore is situated in the toolboxes of "skills." It does not claim to belong to traditional positivist legal scholarship which tends to ignore the relevance of public international law and obviously obviously missed some - or many? - of the boats in the early - and timely - observation and analysis of upcoming dramatic and far-reaching changes of the legal process of internationalization and globalization in Switzerland.

II. Jens Drolshammer, Swiss Law and Legal Culture and the process of Americanization, Foreword

1.     Basic information on the project

Beyond the General Introduction to the Anthology on Swiss Law and Legal Culture, which the general-editor's worded, the following information may be of help for the user and reader regarding the parts on the process of Americanization, Europeanization and Globalization.

The origin of the project of the Anthology on Swiss law and legal culture lies in the Legal Culture Club, an institutionalized venue of internationally minded law professors, which regularly meets and discusses legal matters of mutual interest at the home of Jens Drolshammer. The original members associated with the project were professors Daniel Thürer, Thomas Cottier, Wolfgang Ernst, Thomas Probst, Cyril Rigamonti and Hans Ueli Vogt. The general project is an open project attempting to include several other relevant topics and fields of law in order to convey a balanced and holistic view on Swiss law and legal culture. Jens Drolshammer was the spiritus rector and - nolens, volens - the driving wheel of the project.

We start the work in progress with a joint venture of Thomas Cottier's part on International Relations and Jens Drolshammer's parts on the processes of Europeanization, Americanization and Globalization of Swiss law and legal culture, which cover key areas and forces shaping Swiss law and legal culture faced with the challenges of the internationalization of the world and of law. All three parts of Jens Drolshammer lead up to the presence. The part on Americanization covers the time period from the formation of the Union of the States of North America towards the end of the 18th century. The part on Europeanization covers the time before and after World War II and the part on Globalization the time after World War II and in particular, after the end of the period of the Cold War.

The selection and the comments of the texts have to be viewed on the background of the professional education and the work in academia and private practice in international matters for about 50 years of the editor. The editor has grown up and worked in post World War II and post cold war times and had a strong transatlantic focus with a continuing exposure to American legal practice and academia. The majority of the texts written after World War II and selected and commented had been authored – this only became evident at the end of the work – by friends, colleagues and teachers of the editor. In that sense, the parts on Americanization, Europeanization and Globalization present a "walk" through the professional life of the editor.

The project of an Anthology leaves little room for the personal mindset and thinking of the editor as an international lawyer. In order to arrive at the final selection of more than 100 texts, the editor had to peruse several 100 texts and read and comment about 200 texts. The number of pages of the texts or excerpts of texts included in the three parts is about 2300, the number of texts worded and collected by the editor is about 500 The selection and comments have yet to stand in professional discussion amongst colleagues and interested readers and users, if ever there is or will be time for that. The three texts are - although related – stand alone texts. They are based upon a rigidly applied identical concept of selection and commenting. The texts are reprinted in a facsimile manner in the electronic and the print version as well as they have appeared in the cited originals. They contain footnotes and bibliographical references. The texts are reprinted in the original language, in which the authors wrote the texts.

The majority of the texts are short stand alone texts; a minority are excperts out of longer texts, such as books and monographs. The sociology of the authorship and the languages used show, that the mainly Swiss authors more and more used the English language to write their texts and that hardly any texts have been formally translated. The comments, the biographical references and the biographies are completely worded in english, the lingua franca of present international discourse on the internationalization of law. Since the editor in private practice and in academia mainly has been involved and specialized in international matters and has lately specialised in the topic of Globalization and Americanization of law and legal profession he has frequently written on those subjects and therefore has included a few texts, which he penned himself. An important reason for that is, that the process orientation of the parts and the focus on the underresearched phenomenon of "how law travels" and "how law impacts" are not a traditional and accepted category of academic endeavours of which the editor never was a full member.

The parts on Americanization, Europeanization and Globalization on Swiss law and legal culture will simultaneously appear as a print and as an electronic version. This is based upon a conscious decision to conceive the totality of texts as a structured aggregation of information to be subjected to state of the art methods of knowledge generation and knowledge management at the forefront of communicating about law internationally. The online platform (to be disclosed later) was created using the open source software WordPress. The structure of the Anthology is reflected in the sites’ navigation. Each contribution is a separate site having a fixed URL (permalink) and includes a link to the original text which can be downloaded in PDF format. The whole platform is freely accessible and optimized for indexing by search engines (Google, Bing, etc.).

The main purpose of the electronic version is to facilitate the accessability and the usability of the information by an unknown group of potential users and readers. The texts of the three parts are therefore conceived as "tools", the merit of which will be brought to reality primarily with the actual uses. The style of the editors comments therefore are not literary or scholarly in a traditional sense. Because of the complexities of the topics covered, they rather are a structured and linked collage leading to and opening up a Denkraum (thinking space) (Abi Warburg). Some of the texts of the editor, as the introductions for instance, in that specific context are non footnoted descriptions and many of the texts of the editor in the subparts background and summary retain or paraphrase at times elements found in the biographies and in the texts of the authors themselves. The texts are to convey and breath a cosmopolitan air and are consciously and unconsciously linked by a holistic and generalist view of legal education, scholarship and practice, which the editor believes to be essential for thinking and particularly acting as an international lawyer nowadays.

2.     Key concepts applied

Beyond the general introduction of Thomas Cottier and Jens Drolshammer the following remarks concerning some concepts used by the editor in the parts of Americanization, Europeanization and Globalization, may help the user and the reader to better understand the approach used in order to accommodate the fact, that legal research has not yet dealt with the phenomena of Americanization, Europeanization and Globalization in a comprehensive and settled manner.

The editor used specific tools such as guiding principles, which are identical and essential to the three parts. These guiding principles although not yet delevoped and distilled in dogmatically accepted terminologies and concepts have a function of "generators" in the design of the texts of the editors.

The Anthology of texts for instance uses Leitmotive for the topic areas dealt with. The Leitmotiv of the Anthology of texts as a whole is "See it fresh - see it whole - see it how it works" by the American lawyer Karl Llewellyn. The part of the process of Americanization uses the Leitmotive "America does not exist", a title of a children story of the Swiss writer Peter Bichsel - and  "...and to define America and her athletic democracy", a statement of the American writer Walt Whitman in his work of poetry Leaves of Grass. The Leitmotiv of the part on the process of Europeanization is "Les Suisses se levent tot, mais se reveilent tard" ("The Swiss get up early but wake up late") by the Swiss visionary on Europe Denis de Rougemont. The Leitmotiv of the part on the process of Globalization is a statement "The World - but - I see you" by the Swiss artist Remy Zaugg conceived for a mural in a building of the federal administration in Berne, which was never realized.

Besides those overarching Leitmotive, the three parts sail under the flag of the metaphors "How law travels" and "How law impacts", using an analogy to a seminal essay of the literary critic Edward Said "How ideas travel" and "How ideas travel reconsidered". The content on this metaphor is open and methodologically not defined and settled.

The parts of the Anthology further use a modern concept of mindset and attempt to establish the notion of a "globalization adequate mindset".

The key notion of arranging and grasping the evolution of the travels of law in the respective areas is the making use of a process orientation of the selection and the description of the texts. This process orientation in the description of the legal process of Americanization, Europeanization and Globalization brought about a necessity to elaborate a frame work of reference of those processes in the individual introductions. The basic reason for that was, that the result of the extensive search were patchy and inhomogonous; moreover, the results showed that the processes as such have not been made part of a generalized, accepted and coherent analysis yet.

It is moreover key to the three parts Americanization, Europeanization and Globalization that they beyond law pertain to legal culture. Irrespective of the state of sophistication of cultural science and in particular legal culture, the texts of the editor use such a broader perspective. Although the parts of the Anthology are basically a text based Anthology, the texts therefore include wherever possible references to institutional environments and to individual lawyers as personal shapers of legal reality as essential parts of Swiss legal culture. Although any selection and any comments are unconsciously marked by subjectivity of the author and commentator, he attempted not to take a judgmental stand on some of the critical phenomenas dealt with in the texts selected.

3.     A look into the future

The findings and comments of the editor are a mere quarry of building blocks, which are to be further analyzed, described and understood and complemented in later studies, if at all. In that sense, the texts are a mere basis for the determining of an agenda for further possible research. This will be up to others.

We are speaking here of a thematic beginning and not an end. It is a first step to the more visible staging of Swiss law and legal culture - mise en scène - in the legal process of internationalization and globalization. We limit ourselves to make a playful reference to some passages of the valedictory lecture of the editor (see text 2.42 of the part on Americanization with the title The Global Groove of the Harvard Yard - Personal aspects of the person in the Globalisation and the Anglo-Americanisation of law and legal profession). The basis of the lecture was a collection of essays, which appeared in December 2008, in particular the long theoretical closing text "The path to a turn to the lawyers - American concepts and ideas for a blueprint to take it global", which the editor mainly conceived and wrote during his stays at Harvard Law School between 1999 and 2008. Regardless of the fact, that the editor attempted at that time to conceptualize a personalistic approach of a New International Lawyer, primarily by using American academic experiences, the specific treatment of that issue in the valedictory lecture might serve as an adequate and analogous methodological path for further conceptualizing and further research based upon the findings in this Anthology of the concepts "how law travels" and "how law impacts". It would be too easy a way out to just replace in the following statements and language sentences the key notion of personalized approach to a New International Lawyer by for instance Switzerland in the global legal process. Nevertheless the following statements and language sentences in the valedictory are in view of the editor useful and relevant to the task of whoever wants to deal as a scholar with the results of the Anthology. We take the liberty to advocate a playful use and development of methodological tools to approach future work.

As regards to the statements we cite from the valedictory lecture:
"These glimpses of the future requiring a targeted objective in the form of a vision are, in my opinion, another characteristic of American law and academic culture. This is not to advocate an old-fashioned romantic and nostalgic professionalism. Rather, it is about a forward-looking construction of a new and globalized virtual community of lawyers in international legal practice in the widest sense. Turning theory into reality means in this context developing a professional culture and a professional association that lives up to the name of a "Visible College of International Lawyers". Originally confined to international law, the college would become globalized by incorporating all relevant roles of the profession of New International Lawyer. These eight statements are about specific characteristics of American law and academic cultures that attractively influence the conceptualization and subsequent operationalization and make possible an understanding and discussion of this issue. This treasure hunt guided by the melody of Play Me the Song of Pan ultimately lead to the following findings and fragments from American legal and academic culture:

- Legal thought and action which are motivated by exceptional curiosity and openness, which are bottom-up and facts-and issue-driven, and which focus on legally relevant realities and are persistent in their observation and investigation - "see it as it works”. (1)

- The equally valid incorporation of "behavior' and "effect" alongside the "being" of legal actors - all embedded in a special connection between "knowledge" and "activity". (2)

- A conscious positioning on a meta-level, a deliberate choice of a global perspective and, associated with this, an implicitly academic discussion of globalization. (3)

- An understanding of legal practice as soon as possible after the event as a legal process, and a striving to tackle and describe change in this legal process as early as possible. (4)

- A situational and issue-related use of theory as the foundation of a theoretical conceptualization of New International Lawyers from a global perspective - situation analysis in the form of a situationality and activity analysis as a platform for a conceptualization and operationalization of the New International Lawyer. (5)

- An unbiased relationship with an appropriate and contemporary interdisciplinarity between different areas of the humanities and social sciences in the concretization of person, situation, position and profession of the New International Lawyer - a dizzying "anything goes". (6)

- An academic openness to raising the issue of change from "modern" to "postmodern" in the history of ideas, including the effects of globalization on law and the legal professions, and to including this within an overall perspective. (7)

- A imaginative and optimistic "mindset" concerning other key ideas and visions for the future roles of "international lawyers" in globalised international practice -
- from the "invisible college of international law" to the "visible college of international law" and the "visible college of international lawyers". (8)"

In the staging of the investigation in the valedictory lecture in „language sentences" for further explanation of the reflection space we cite:
"Having provided an approach through a number of statements to the “exhibition of the reflection space”, there now follow nine guiding principles and nine key quotations as important signposts for a discursive approach to the exploration of a personalistic approach to the understanding within the “reflection space” of legal practice in the context of globalization With one interesting exception, I have deliberately chosen key quotations from Anglo-American writers, mainly from the United States. They are also masters of compression whose sentences are an art form in their own right, guiding us on our journey through the “exhibition space” and serving as “signposts” to the “reflection space”. They follow a descriptive and thematically inspired dramaturgy and adopt central approaches and perspectives to this personalistic approach.

1. Suspicion towards new ideas
Guiding principle: This approach to the personalistic conceptualization of the New International Lawyers and their networks as key actors in globalised legal practice is hindered by certain preconceptions about globalised legal practice:
Key quotation:
JOHN LOCKE (1632-1704), an Englishman, said:
“New opinions are always suspected, and usually opposed, without any other reason, but because they are not common.”

2. Perseverance and stagnation in law
Guiding principle:
This personalistic approach discusses the evolution of law through legal practice in the course of globalization from a global perspective.
ROSCOE POUND (1870-1967), who for a long time was Dean of Harvard Law School, wrote, sitting shaded from the sun at his bespoke round furniture:
Key quotation:
“The law must be stable, but it must not stand still.”

3. From principles to personalities to be motivated
Guiding principle:
This personalistic approach is about the “actions” of active individuals who, as legal actors, playa key role in globalised legal practice.
Key quotation:
OSCAR WILDE (1854-1900), an Irishman, wrote the following while staying on Lake Geneva:
“It is personalities, not principles, that move the age.”

4. The dishonesty of striving for systems
Guiding principle:
This personalistic approach is an American-style, issue-related and topical way of dealing with new realities that seeks to avoid systematization and dogmatization.
Key quotation:
FRIEDERICH NIETSCHE (1844-1900), who collaborated with JACOB BURCKHARDT in Basle at a time of anti-American sentiment, and is a German who is currently enjoying an unprecedented revival in the United States, wrote in Sils Maria in the Engadine:
“Distrust all systematizers and avoid them. The will to a system shows a lack of honesty

5. Common sense as the foundation of the scientific
Guiding principle:
This personalistic approach is also a matter of pragmatic, cosmopolitan philosophical common sense, and not simply dry, dogmatic hard science.
In the words of OLIVER WENDELL HOLMES SR. (1809-8094), professor of medicine at Harvard Medical School, father of Justice OLIVER WENDELL HOLMES JR, and a member of the Metaphysical Club together with WILLIAM JAMES and CHARLES S. PIERCE, who were the fathers of American philosophical pragmatism:
Key quotation:
“Science is a first-rate piece offumiture for a man’s upper chamber, ifhe has common sense on the ground floor.”

6. Finding the essential in what is small-scale and concrete
Guiding principle:
This personalistic approach is about observations, investigations and descriptions that are outward-looking and seek to transform something “small” into something that may be “larger”. In the words of the Indian author and most of all film maker SATY AJIT RAy (1921-1992).
Key quotation:
“It is the presence of the essential thing in very small detail which one must catch in order to expose larger things.”

7. Recognition as looking from the outside to take an active part in the process of change
This personalistic approach is about active participation in the form of observation, investigation, description and shaping of evolving legal life in the context of globalization.
Key quotation:
The American philosopher, educationalist, sociologist and legal expert JOHN DEWEY (1852-1952), who brought American philosophical pragmatism to its first flowering, wrote:
“From recognition as looking in from outside to recognition as taking an active part in the drama of an ever-changing world – that is the historical transition whose history we have followed.” (Use English original if available)
Guiding principle:
This personalistic approach is about incentives to the observation, investigation and description of globalised legal practice as something new and different. RICHARD RORTY (1931-2007), was a close friend of JORGEN HABERMAS. After the revival of pragmatism, he left his post as professor of philosophy at Princeton University in 1982, was professor of humanities at the University of Virginia from 1983 to 1998 until he became an emeritus, and then served as professor of comparative literature at Stanford from 1998 to 2004.
Key quotation:
“People should stop worrying about whether what they believe is well founded, and instead should worry about whether they have managed to summon up enough imagination to think of interesting alternatives to current beliefs.” (Use English original if available)

8. Imaginatively devising interesting alternatives to current beliefs
Guiding principle:
Ultimately, the theme of the personalistic conceptualization of New International Lawyers and their networks as key actors in complex globalised legal practice is a rejection of hasty, non-analytical opinions and values to undertaking questioning with an inquisitorial mindset – a seemingly simple process which as jurists we often fail to adopt be it through complacency or ignorance.
Key quotation:
The American author GERTRUDE STEIN (1874-1946) wrote in Paris:
” What is the answer? .. In that case, what is the question?”
These nine guiding principles and nine key quotations are important signposts in investigating the conceptualization and operationalization of the New International Lawyer. They reflect various standpoints, from which the multidimensional “reflection space” can be measured and triangulated, and are strategic viewpoints in investigating the personalistic approach. The approach to this investigation strategy is to be found largely outside the realms of traditional continental European legal thought. This methodology results from taking account of the ruinous state of pluralization, digitalization, loss of autonomy and systemic collapse as a characteristic of the Brave New World oflaw in the age of globalization. It is inspired by relevant legal factors of a pluralist order, a more associative organization of material, a politicized understanding of law and of the order in concrete problems, and can be seen as a postmodern mode of thought. As with the investigative methodology itself, we believe this also applies to the description chosen here in the form of a staging of the investigation in the “reflection space” through art forms. "

Of course, the possible conceptualization of the legal process of the internationalization of Swiss law and legal culture would be – as the American say - "an elephant to big to chew". There is no way around to face those challenges though. The editor suggests to go to Frank Lloyd Wright's Guggenheim Museum in New York City and "to walk up and down the curved ramps". This is a metaphor used by the composer and conductor Pierre Boulez in a workshop on his work Répons during the Lucerne Festival for in a space and place, which allows the international lawyer to simultaneously look at every step into the future, the presence and the past.

4.     Persons and institutions involved

The editor did the work alone as an individual researcher with no further infrastructure. The project being part of modern knowledge generation and knowledge management in legal matters, the editor never was alone though. He depended on essential contributions in the division of work from various persons, who made it possible that after a long walk" an electronic and a printed version can be published.

The editor thanks Werner Stocker, the managing co-owner and chief executive of DIKE Verlag AG in his function as publisher of the electronic and printed version. Werner Stocker from the outset in the Legal Culture Club and for about four years was the organizational and administrative master of the project of this Anthology. He has dealt patiently with the trials and tribulations of coping with representatives of academia. Despite the fact, that the project so far has lacked a commensurate project infrastructure and an adequate financing, he "pulled it through" and accompanied the editor and made the publications become a reality. The editor further thanks the members of the Legal Culture Club originally part of the project, professors Daniel Thürer, Cyril Rigamonti, Thomas Probst, Wolfgang Ernst and Hans Ueli Vogt for their initial thrust to get the project going and for their critical comments as early birds on the electronic versions after the uploading on the website www... (to be made public later)

Since it was the decision of the general editors and of the publisher to simultaneously publish the works on an online platform, the editor is thankful to Raphael Fisch of DIKE Verlag, who built the structure of the website. Raphael Fisch presently is a candidate for a PhD degree at the University of St. Gallen, working under professor Florent Thouvenin at the Forschungsstelle für Informationsrecht (Research Center for Information Law) (FIR HSG). The editor is thankful to Irene Bangerter of DIKE, who performed the tedious task to scan more than 100 texts in an uploadable form.

The editor thanks his colleague and friend professor Thomas Cottier of the University of Bern, who believes in the novelty and charms of the project, for writing and collecting his part on International Public Law and International Relations and assisting the editor as single practitioner with his vast infrastructure of the World Trade Center at the University of Berne. The editor is particularly grateful for his systematic analysis of the manuscripts as part of an agreed upon peer review. Jack Williams, a collaborator of Thomas Cottier – a junior research assistant and british gentleman of a special kind – has to be thanked for his valuable contribution as a language editor of the lingua franca english.
The editor is particularly thankful for his friend and colleague Urs Gasser, Executive Director of the Berkman Center for Internet & Society and Professor from Practice at Harvard Law School for his willingness to critically accompany the three parts and making accessible a new type of software developed at the Berkman Center as a state of the art educational and teaching tool. He gives the editor joy and comfort, that this work will being made accessible to larger circles in the legal world by institutions, where he had the privilege to work several fall terms in the years of 1999 to 2008 as a visiting research professor at the European Law Research Center at Harvard Law School. Of professor Gasser's team, the editor thanks the summer clerks at the Berkman Center Leigh Graham, Olivia Conetta, Alysa Batzios for having early carefully edited the manuscripts of June 2013 from an English language perspective. Dana Walters has to be thanked for bringing about a state of the art subliscense, loading the texts up to the respective new program of the Berkman Center of Harvard University and helping with an adequate outreach program.

In the personal offices of Drolshammer Strategy & Law's the project – a Tower of Bable in the miriads of modern IT - Technology – had to be worded, arranged, corrected and rearranged at several stages. The editor is particularly grateful to his part time student assistants, without which he would have lost faith in the doability and feasibility of the project. Benjamin Seitzinger was the early responsible student assistant, creating the electronic foundations of the project. The editor particularly thanks his student assistant Gianni Trezzini for his skills and perseverance. He has worked between June 2013 and the first half of 2014 on the manuscripts and put them into a printable version as well as uploaded all the documents on the electronic website.

In view of the fact, that the three parts lead up to the present time, particularly in view of the fact, that the majority of texts with the significant time delay date from the early years of the 21st century, the cut off day of July 2013 is important to take note.

The editor and author could not have done the work without the presence of his children Nils, Liv and Unna, the editors pride and the promise for a future who are the noblest and smartest teachers of their father.

The editor hopes that the initial publications of the parts of Thomas Cottier and Jens Drolshammer will led to an adequate project infrastructure and financing and to further contributory in other areas of law and legal culture in due course.

Law is a key phenomenon and asset of a culture and has to be studied, stated and communicated to the world of readers and users, who nowadays are possibly spread all over the globalized world.
We may end with the Anglo-saxon pessimism of Samuel Beckett, an Irishman in Paris: „Ever tried. Ever failed. No matter - try again, fail better" or the American optimism - the Leitmotiv of this Anthology of Swiss law and legal culture - of the great American jurist Karl Llewellyn "See it fresh - see it whole - see it as it works".

"Das Wärs dänn gsi" -
"That's all folks"

III. Table of content

 1.    Introduction

1.1    Purposes of the part on the Globalization and its relationship to the parts of Europeanization and Americanization of Swiss law and legal culture

1.2    Swiss law and legal culture faced with the new phase of globalization beyond Europeanization and Americanization

1.3    "To take it global" shows a new legal mindset to observe and analyse the "travels" and "impacts" of the legal process of globalization on Swiss law and Swiss legal culture - a globalization - adequate mindset

1.4    Types and Examples of "travels" and "impacts" of the legal process of globalization on Swiss law and legal culture

1.5    Characteristics and peculiarities of the dealing with the "travels" and "impacts" of the legal process of Globalization in Switzerland

1.6    Characteristics and peculiarities of the selection of the texts and of authors in the Anthology writing on the process of Globalization of Swiss law and legal culture

2.    Texts

A.     A cultural exchange and encounter – "travels" and "impacts" of Swiss legal culture on the legal process of globalization

2.1    Pierre Tercier, Le rayonnement international du droit Suisse, Zeitschrift für Schweizerisches Recht, 1999, p. 1-9
[The international radiation of Swiss law]

2.2    Max Rheinstein, Types of Reception, in Max Rheinstein, Gesammelte Werke - Collected Works, Vol. 1, Rechtstheorie und Soziologie, Rechts-vergleichung und Common Law (USA), p. 261-268 (a comment written after the meeting of the International Association of Legal Science held in Istanbul, September 1966 on the issues of the reception of the Swiss Civil Code in Turkey 1926, first published in Annales de la faculté de droit d’Istanbul (1956), p. 31-40

2.3    Jens Drolshammer/Nedim Vogt, English as the Language of Law?, An Essay on the Legal Lingua Franca of a Shrinking World, Zurich, Basle, Geneva 2008; excerpt: VI The international impact of Swiss law, p. 28-31

2.4    Marc Blessing, Introduction to Arbitration - Swiss and international perspectives, Basle, 1999, excerpt: II Swiss Traditions and legal culture, p. 63-66

2.5    Peter Nobel, Das schweizerische Recht vor den Herausforderungen des internationalen Rechts- Bank- und Finanzmarktrecht, excerpt: B, Zweiter Teil; Die wesentlichen Institutionen, Elemente und Ergebnisse der Internationalisierung, I Internationale Institutionen in der Schweiz, in Schweizerischer Juristentag 2012, Das Schweizerische Recht vor der Herausforderung des internationalen Rechts, Zeitschrift für Schweizeri-sches Recht, 2012, Heft 2, p. 199-213
[International institutions in banking and financial market law in Switzerland]

2.6    Carl Baudenbacher, Swiss Economic Law Facing the challenges of International and European Law, excerpt G: Contributions of Swiss Law to Foreign, International and European Law, in Schweizerischer Juristen-tag 2012, Das Schweizerische Recht vor der Herausforderung des internationalen Rechts, Zeitschrift für Schweizerisches Recht, 2012, Heft 2, p. 646-660

2.7    Raymond R. Probst, "Good offices"; in the light of Swiss international practice and experience, Dordrecht/Boston/London, 1989; excerpt: Chapter III, "Good offices": The Swiss experience, p. 17-70

B.     A cultural exchange and encounter - "travels" and "impacts" of the legal process of globalization on Swiss legal culture
a)    general impacts and challenges in legal practice, legal education and legal research

2.8    Thomas Cottier, Die Globalisierung des Rechts - Herausforderungen für Praxis, Ausbildung und Forschung, Zeitschrift des Bernischen Juristen-vereins, 1997 p. 217-236
[Globalization of Law - Challanges for Practice, Education and Research]

2.9    Daniel Thürer, Die Bundesverfassung von 1848: Kristallisationspunkt einer Staatsidee; Drei Paradoxe und die Frage ihrer Bedeutung für die Fortentwicklung der Verfassungskonzeption im Zeitalter der „Globalisie-rung", in: Daniel Thürer, Perspektive Schweiz, übergreifendes Verfas-sungsdenken als Herausforderung, Zürich 1998, p. 15-34
[The Federal Constitution of 1848: Point of crystallization of an idea of government; three paradoxes and the question of its significance for the further development of the conception of constitution in times of "globalization"]

2.10    Hans-Ueli Vogt, § 7 Das Recht in der Globalisierung, excerpt: In Konvergenz von Gesellschaftsrechten, ein rechtsvergleichender Befund und seine rechtssoziologische und rechtstheoretische Erklärung im Lichte der Globalisierung, Zurich/St. Gallen 2012, p. 282-308
[Law in Globalization]

b)    impacts on Swiss governmental structures by the constitution-alisation of international law

2.11    Thomas Cottier, The Constitutionalism of International Economic Law, in: Karl M. Meesen, (ed., in cooperation with Marc Bungenberg and Adelheid Puttler), Economic Law as an Economic Good, Its Rule Function and its Tool Function in the Competition of Systems, Munich 2009, p. 317-333

c)    impacts on Swiss legal science

2.12    Jens Drolshammer, Wird die Globalisierung selbst zu einem Forschungsfeld?, in Verlangt die Globalisierung eine Neuausrichtung der Forschung? Beispiele von Forschungsfeldern in Recht und Management aus Sicht des Internationalen Lawyers, in Jens Drolshammer A Timely Turn to the International Lawyer? - Globalisierung und die Anglo-Amerikanisierung von Recht und Rechtsberufen - Essays. Zurich/Baden-Baden, 2009, p. 432- 437
[Is Globalization itself becoming a field of research?]

2.13     Thomas Cottier, Challenges ahead in International Economic Law, Journal of International Economic Law, 2009, p. 1-13

d)    impacts on Swiss legal professions

2.14    Peter L. Murray /Jens Drolshammer, The Education and Training of a New International Lawyer, in the Internationalization of the Practice of Law, Jens Drolshammer/Michael Pfeifer ed., Kluwer Law International, The Hague London/Boston, 2001, p. 289-328

2.15    Jens Drolshammer, A College of International Lawyers in a Networked Society? The Need for Conceptualisation of the New International Lawyer from a Global Perspective, in Jens Drolshammer, A timely Turn to the Lawyer? - Globalisierung und die Anglo-Amerikanisierung von Recht und Rechtsberufen - Essays, Zurich / Baden-Baden, 2009 p. 601-632; first published in Reflections on the International Practice of Law, Liber Amicorum for 35th Anniversary of Bär & Karrer, 2004.

e)    Impacts on Swiss legalisation

2.16    Heinrich Koller, Globalisierung und Internationalisierung des Wirtschaftsrechts - Auswirkung auf die nationale Gesetzgebung, Referate und Mitteilungen des schweizerischen Juristen Vereins, Zeitschrift für Schweizerisches Recht, 2000, p. 313-360
[Globalization and Internationalization of Swiss economic law - The effects on national legislation]

f)    globalisation and the law of information

2.17    Jean Nicolas Druey, Das Verhältnis von Information und Recht, excerpt: 1. Teil, 2. Kapitel in Information als Gegenstand des Rechts, Zurich/ Baden-Baden 1995, p. 437-444
[The relationship between information and law]

2.18    Herbert Burkert, Information Law: From Discipline to Method, in a special series of the Berkman Center of Society and Cyber Law, Harvard University, 2014 (to be published)

2.19    John Palfrey and Urs Gasser, excerpts: Solving for Interop, Architectures of the Future: Building a Better World and Conclusion: The Pay off of Interop as Theory, in Interop: The Promise and Perils of Highly Intercon-nected Systems, New York, 2012, p. 231-262

2.20    Thomas Cottier, The Impact from Without: International Law and the Structure of Federal Government in Switzerland, in Peter Knoepfel, Wolf Linder (ed.), Verwaltung Regierung und Verfassung im Wandel, Gedächt-nisschrift für Raimund Germann, Basle, Geneva, Munich, 2000 S. 213-230, reprinted in Thomas Cottier, The Challenge of WTO Law, Collected Essays, London, 2007, p. 371-390

3.    Bibliographical references

4.    Biographies of authors

a) Background

The text at hand is the written version of the valedictory lecture of Jens Drolshammer given on the 15th May  2009 at the University of St. Gallen prior to his becoming an emeritus professor. The text has been published as a scientific contribution in the Zeitschrift für Schweizerisches Recht in 2009. A short version of the valedictory lecture has appeared in the Newsletter of the Deutsch-amerikanische Juristenvereinigung (Newsletter of the German-American association of lawyers) in 2010. In its form, the text is an essay, using the prerogatives of academic freedom. It refers to a collage style, drawing upon among others aspects of the fine arts and music. In view of the complexities of globalization in law the topic is addressed from different perspectives and positions and with different methods. The text is largely based upon observation and experience and is situated in the context of professional activities. The text is written on a "bottom-up" and "facts and issues-driven" basis. The text advocates the institutionalization of grasping globalization in legal education and in legal professions by observing and describing the professional activities of representative legal professionals and their networks and aggregating them into a pattern and overall picture in a holistic fashion. The main title "The Global Grove of Harvard Yard" means to address the spell being cast by the "soft power" of American legal and academic culture over the subject area. The main title is also intended to refer to a metaphor for something that goes even further: an attempt to capture the almost musical phenomenon that certain American educational institutions at times may inspire the participating observer and researcher personally, professionally and academically. The text at hand is an example of a Swiss lawyer and visiting researcher bringing European concepts to the dialogue on emerging concepts of international lawyers at Harvard Law School while at the same time integrating American interdisciplinary thinking in his work of attempting to conceptualize a new international lawyer in the legal process of Globalization. Jens Drolshammer is an emeritus (2010) professor of law at the University of St. Gallen and a former founding and senior partner of an international commercial law firm in Zurich. He practiced internationally for many years dealing with issues of American law and legal culture. He worked in that context from 1999 to 2008 as a Swiss visiting research professor at the European Law Research Center at Law School of Harvard University, developing a methodology for analyzing effects of globalization. This led to the publication of twenty essays in A Timely Turn to the Lawyer? - Globalization and the Americanization of Law and Legal Professions - Essays (2009).

b) Summary

The text is based upon a quote out of Henrik Ibsen's Peer Gynt of 1867 and deals with the transformation of people (as professionals) and the forging of new relationships (networks) between them - people who are exposed to internationalization and who manifest themselves professionally in internationalization. The text deals with the life and work situations of professionals and of the associated international networks as key players in the globalized legal world. It is these "New International Lawyers" who in the globalized legal world essentially turn "theories" in to "action", the core areas being: Person-Situation-Position and Profession. The text is written with an agenda for a subsequent operationalization of a new international lawyer. The vision aimed at is a "College of International Lawyers" with their potentials in the networks under the aspects of "comparability", "compatibility" and to some extent also "competitivity" -and above all of "interoperability". The text postulates as the principal thesis - by analogy with Justice Holmes statement that "Law is what the judges say it is" – it is true to say that in the globalized legal world that "Law is what the international lawyers do". The text takes a personal approach based upon a Weberian sociological approach with respect to the lawyer, likened to an economic approach with respect to the "entrepreneur", a political economy approach a more advanced form of "homo oeconomicus", the "Manager" in management theory as well as in theories on "Leadership" and "Entrepreneurship". The text looks over the Atlantic Ocean to the United States and notes that practically and theoretically at American universities the topic is being analyzed and researched from different perspectives and in different forms and different academic spheres. According to the text this is done with interdisciplinary diversity, with a curiosity rooted in reality and with a focus on the theme that is also clearly and strongly anchored in various academic disciplines taking the issue global. The text notes that the academic exploration of globalization and of people and professionals in a time of globalization is mainly being carried out by Anglo-Americans and is primarily published in English. The asynchronicity and above all the asymmetry of the process of inquiry, research, teaching and professional implementation in professional reality compared to the continent of Europe is remarkable. In its main focus the lecture addresses aspects of the American minds, melodies and rhythm - "play me the song of Pan" - and the influence of the seductive power of the American knowledge base in developing the topic. The text makes eight statements from a globalization prone mindset, motivation and curiosity. (1)The lead statements are "see it fresh - see it whole - see it as it works" - facts first; (2) The Nobilitating shift to "Behavior" and "Effect" and the special liaison between "Knowledge" and "Activity"; (3) "Take it Global"- a deliberate and self-understood choice of perspective on a meta-level; (4) "The times They Are A-changing" - tackling the challenges of Change; (5) "The Issue-Driven Use of Theory" - the example of the "Situationality and Activity Analysis" of a New International Lawyer as a theoretical platform for a conceptualization of a new international lawyer"; (6) The free jazz of "anything goes" in the Interdisciplinary competition and cooperation of the social sciences in constructing the new international lawyer in Globalization; (7) The inclusion of postmodernism into the Brave New World of Law and Lawyers in Globalization; (8) and the Vision of a "Visible College of International Lawyers". The final part of the exploration of the topic uses the art form of "Language Sentences". The text uses nine quotations as guiding principles and signposts for a discursive approach to the postmodern "reflection space" of the personalistic conceptualization of the New International Lawyer. The quotations come from (1) John Locke; (2) Roscoe Pound; (3) Oscar Wilde; (4) Friedrich Nietzsche; (5) Oliver Wendell Holmes Sr.; (6), Satyajit Ray; (7) John Dewey; (8) Richard Rorty; (9) and Gertrude Stein. Though acknowledging various dark sides of American law as an American legal and academic culture experienced in various functions, the text closes with a call for "joy" dealing with the specific topic with the specific contributions of American legal and other academic disciplines. The topic is treated under the main Leitmotiv of Karl Llewellyn of the essay collection "see it fresh-see it whole-see it as it works" - the Leitmotiv chosen for the Anthology as well.

c) Text

You can find a scan (PDF) of the original text here:
A_2.42_DROLSHAMMER_Groove

[The situationality of the enterprise lawyer as international lawyer as international lawyer in the tension between globalization and anglo-americanization]

a) Background

This text appeared in the first reader on the European continent on the topic In-house Counsel in internationalen Unternehmungen. It systematically deals in twenty-seven texts with a variety of aspects of the legal profession of enterprise lawyers in particular general counsels in globalization. It is a fact that this important profession, which underwent dramatic changes in the last phase of globalization, is under researched in legal sciences as well as being underrepresented in the professions of the in-house lawyers. The text at hand takes a so-called personalized approach to describe and understand the phenomenon of globalization from a holistic perspective by looking at legal professions as key actors that are marked by the phenomenon of their networks and their integration on an international scale. It is a further step in the generalization of the proposed approach to conceptualize the legal process of globalization by describing the activities of the key legal actors. This is of particular relevance in the worldwide interdependent economy of Switzerland since there are an above average number of multinational enterprises based in Switzerland. The text of Jens Drolshammer should be read in conjunction with the text A College of International Lawyers in a networked society? (2.15 in the part of Globalization). The need for conceptualization of a new international lawyer from a global perspective and the text 3 The Global Groove of the Harvard Yard - Personal aspects of the person in the "Globalisation and the Anglo-Americanization of law and legal professions".

b) Summary

The text addresses a legal profession that has the privilege of usually being the most and earliest exposed to the legal process of globalization owing to the fact that the activities of their enterprises are directly exposed to the effects of a multiplicity of legal systems. The text situates the legal profession of enterprise lawyers and general counsels in the legal process of globalization through a personal approach, which has a longstanding tradition in other humanities and social sciences. It further situates this profession in a new interdisciplinarity arising at the legal process of globalization. The text analyses the reasons why in the past this legal profession has not been analysed in legal science and has not been written about by enterprise lawyers and general counsels themselves. It describes the fact that legal profession in all its aspects and dimensions by large after World War II has been Anglo-Saxon and particularly American driven. The text identifies the major aspects of the changes of the legal process of globalization with respect to enterprise lawyers and brings to the foreground special characteristics of this change for this legal profession. The text states guiding principles for the future development of the international lawyer and in particular the international enterprise lawyer and stipulates a list of desiderata for further conceptualization of this profession. The text ends by stating the need to develop a guiding vision of lawyering internationally in the various key professions. It moves from the vision of "a Visible College of International Lawyers" to the vision of "the Invisible College of International Law".

c) Text

You can find a scan (PDF) of the original text here:
A_2.43_DROLSHAMMER_Zur Situationalität

a) Background

The text at hand deals with the Washington Accord between the United States and Switzerland of 1946. It has been written by Daniel Frei, an eminent former professor of political and international relations at the University of Zurich. The negotiations on the Washington Accord marked the true end of World War II for Switzerland and pitted Switzerland against the United States in a hard and fierce encounter. During World War II, Switzerland has become more and more isolated and in the last years of the war has come under increasing pressure of the Allied Powers, in particular of the United States. (The interested user and reader may turn to chapters 14 Turning the Screw:

American Pressure on Switzerland during the last year of the war (page 317 following), chapter 15 The Aftermath of the War: The German Assets in Switzerland (page 347 following and chapter 16 Postwar Economic Relations (pages 371 -390) of the Swiss historian working out of the United States Heinz K. Meier in his book Friendship under Stress: U.S.-Swiss relations 1900 to 1950. At the end of World War II Switzerland was exposed to a type of isolation it had never experienced before. An important factor was the 1946 Washington Accord on German assets in Switzerland and gold as well as the exclusion of neutrals from the San Francisco conference of 1945.

Based upon the so called Currie-Agreement of March 8 1944 after a period of increased pressure of the Allied Powers Switzerland had to almost completely relinquish transit transports to Italy, to block German assets in Switzerland and to reduce exports to Germany to a minimum level.

Moreover Switzerland had to conclude a financial agreement with France on advance payments in the amount of Swiss francs 250 Million. The Washington Accord was part of the economic warfare of the Allied forces. The respective program of action used the codeword "Safe Haven". The main purpose of the program was, to prevent Germany to build a camouflaged base for a weapons industry and training grounds for military troups. Beyond that, operation "Safe Haven" served to question looted assets transferred by Nazi Germans into neutral countries and to later include German assets outside of Germany to finance war reparations. In that context, Switzerland was a special target, since the allied forces assumed US dollars 300 millions to be in Switzerland. The more Germany's power crumbled, the more resolute the behaviour of the Allied Powers vis a vis neutrals became. On a proposal of the United States, the Allied forces decided to link all economic negotiations with negotiations on a participation in the Safe Haven program. Switzerland therefore on February 16th 1945 decided as a preliminary measure, to block all German accounts, to institute a duty of notification of all German accounts and to waive the banking secrecy and respective professional duties of secrecy for attorneys and notaries. Switzerland assumed, that the Allied Powers started to pressure Switzerland to hand over German assets in Switzerland for the purpose of reparations. At the time of the Currie Agreement, Switzerland argued, that this would be without a legal base and that Switzerland was considering for the later negotiations of the Washington Accord to offset German claims on Swiss assets with Swiss claims on German debth. With the exception of Great Britain, the Allied Powers predominatly had a negative attitude vis-a-vis Switzerland. This was the background of the negotiations of the Washington Accord in Spring of 1946 Switzerland's main purpose was to accommodate the US strategy and at the same time become an accepted member of the new world again.

For the purpose of this Anthology we note, that in the Swiss delegation to Washington among others participated Dietrich Schindler sen. (see text 2.45) and William Rappard (see text 2.16 and 2.19). The Swiss delegation was headed by the towering and sturdy government official, diplomat, and at times member of the parliament Walter Stucki. His life is described in a new biography by Konrad Stamm, "Der grosse Stucki, eine Schweizerische Karriere von weltmännischem Format: Minister Stucki von 1888 - 1963" (The great Stucki, a Swiss career of worldly format: Minister Walter Stucki 1888 - 1963) Zürich, 2013. The outcome of the negotiations of the Washington Accord were highly controversial in Switzerland, many spoke of a capitulation. The behaviour of Switzerland in the negotiations of the Washington Accord and in the ensuing phase of implementation was at the source of consecutive frictions with the United States. Stuart Eizenstat almost 50 years thereafter in his contested forword for the Eizenstat I report of May 1997 squarely addressed the behaviour during the negotiations and in particular concerning the performance of the Accord in harsh words (see text 2.47).

For the sake of clarification, the issue of dormant accounts was not directly part of the negotiations of the Washington Accord. Nevertheless this decisive post World War II encounter of Switzerland with the United States set the stage for conflicts between Switzerland and the US. This, among others, will be dealt with in the ensuing texts 2.45 - 2.49 under the title Neutrality, Morality and the Holocaust as well as in the case study of the UBS case in texts 2.50 - 2.53.

Daniel Frei is a native of Diepoldsau, St Gallen, Switzerland, where he was born in 1940. Frei was the first professor for political sciences at the University of Zurich. He studied history at the University of Zurich, where he got his PhD in 1964 with his doctorate thesis on “The promotion of Swiss national consciousness after the collapse of the Old Swiss Confederation in 1798″ After his graduation Daniel Frei did post-doc studies at the London School of Economics, the Graduate Institute of International Studies, Geneva, and the University of Michigan. In 1968 he obtained his habilitation at the University of Zürich with an analysis with the title “Dimensions of neutral policy”. In 1971 he was appointed to the new professorship for political science with particular emphasis on international relations at the University of Zurich. Daniel Frei significantly promoted the development of political science in Switzerland – not least through his research on the security policy and the East-West relations. He was regarded as the most distinguished German Swiss representative in his field. Starting in 1986 he was a member of the International Committee of the Red Cross, since 1976 also a representative and a president of the Swiss Institute of International Studies in Zurich. Daniel Frei is the author, co-author and editor of the following books in English: International Crises and Crisis Management, Evolving a Conceptual Framework for Inter-Systems Relations, Definitions and Measurements of Détente, East-West Relations in Europe: A Systematic Survey, and The Risk of Unintended Nuclear War.

b) Summary

The text at hand is a scholarly article. It focuses on the Washington Accord of 1946. It was written as a contribution to the history of Swiss foreign policy between World War II and the Cold War. The text has been published in the Schweizerische Zeitschrift für Geschichte (Swiss journal for history). Daniel Frei, according to the text had access to relevant persons and archives on both sides of the Atlantic. The text is a lively and highly readable account of a crucial phase of Swiss foreign policy immeditaly after World War II and it combines historic and political science methods of research it contains a remarkable description of the state of minds and the views of the various actors involved on the Swiss and on the American side.

In the introduction, the text describes the background of behaviour of the Allied Power's towards the end of World War II. The more the German power crumbled, the more resolute the attitude of the Allied Powers vis-a-vis the neutrals became. Switzerland was the main target.

The text then describes the moral and political isolation of Switzerland after the end of the war. The Allied Powers more and more questioned the behaviour and existence of Switzerland as a neutral state; this led to a reassessment and reconsideration of Swiss national consciousness in Switzerland.

The part of the text Die Verhandlungen in Washington: Ausgangslage (negotiations in Washington, the situation at the outset) describes the power structure of the post World War situation and the situation Switzerland had found itself in. Due to the strong and sturdy negotiation position of minister Walter Stucki, the conflict amounted to a conflict between David and Goliath. The situation was marked by trips back to Switzerland as part of the negotiation strategy and attempts to enter into direct contacts with other members of the Allied Power.

The part Der Nervenkrieg und das Abkommen (the tug of wars and the Accord) describes the complexity of the issues at hand. The key question was the determination of a settlement sum between US dollars 100 million and US dollars 250 million. An important issue was the alledgedly acquired gold by Switzerland. The overriding goal of Swiss post war foreign policy was to overcome the post war isolation.

The text in subpart Die Aufnahme des Abkommens in der Schweiz (the perception of the Accord in Switzerland) highlights the  hesitation of large parts of the Swiss population to accept the Accord. The final part Der Beginn des kalten Kriegs (the beginning of the Cold War and its effects on the implementation of the Washington Accord) deals with a substantial realignment of American foreign policy. The Morgenthau plan to deal with Germany was discontinued.. The Marshall plan was formed in late Summer of 1947 instead. The text in detail deals with the implications of those changes for Switzerland.

The text at the end deals with "Von der "Durchführung" zur "Ablösung" des Abkommens (From the implementation to the replacement of the Accord).

The text ends with a general assessment of the achievement of the goals of Switzerland to formalize its relationship to the losing and the winning powers as well.

c) Text

You can find a scan (PDF) of the original text here:
A_2.22_Frei_Washingtoner Abkommen

Dieter Freiburghaus grew up in Laupen close to Bern. He studied mathematics in Bern before going on to study economics and political science in St. Gallen and Berlin. Freiburghaus was a scientific collaborator at the Wissenschaftszentrum Berlin under the direction of Fritz W. Scharpf, where his research activities at the time mainly focused on labour markets. After obtaining his doctorate degree from the Freie Universität Berlin he returned to Switzerland and founded the Forschungsstelle Wissenschaft und Politik in Bern, a small consultancy firm for the evaluation of politics, mainly focusing on labour markets and research and technology policy. He habilitated in institutional economy with Professor Silvio Borner at the University of Basel.

From 1988 to 2007  Freiburghaus was a full Professor at the Institut de Hautes Etudes en Administration Publique (IDHEAP) in Lausanne. He taught courses on institutional questions of the Swiss political system, European integration and on the internationalization of public policies. He was a director of Europaseminare Solothurn, a program of short courses of education on Europe for officials of the government and of the Cantons. At the Institute for Politikwissenschaft of the University of Bern he gave seminars on the theory on European integration and on globalization. He has been a consultant for among others on various issues of Swiss and German federalism. Since he became an emerite he works as a publicist,often publishing articles and giving lectures on topics such as European integration, Swiss policy vis a vis Europe and the Swiss political system in general.

 Publications : (http://www.dieter-freiburghaus.ch/weitere-schriften/).  

References: Personal website of Dieter Freiburghaus http://www.dieter-freiburghaus.ch/lebenslauf/

Cohen Cheat Sheet on Compulsory Party Joinder, Intervention, and Interpleader.

NB: I will not test you on this material or really cover it in any depth in class but you should read it. It is on the line of "Civ Pro" and "Advanced Civ Pro" (if that course ever exists) and I want you to know about this for your practice.

I.    Compulsory Joinder of Parties.

(Note: In the older terminology “necessary part[ies]” are the kind discussed in FRCP 19(a), who really should be joined as parties. Then a further subset of people “indispensable parties,” those who should be joined, but can’t, and in their absence the case will be dismissed.)

The Theoretical Problem: When should litigant autonomy in shaping the lawsuit give way to efficiency or justice concerns, such that we’ll override it? Imagine you wanted to throw me a birthday party and selected a particular date, my birthday. Now imagine one member of class can’t make the party that day, but the other 79 or so of you can. You’d probably stick with the original date. Now imagine I can’t come to my own birthday party. You’d cancel it. This is how this issue works except it is a lawsuit not a birthday party. Who should be invited to join? Who can’t be joined who should? And of the people who can’t be joined but should, who are so important that we would dismiss the lawsuit altogether if they can’t be joined?

The Doctrinal question: When MUST you join another party, and when does the inability to do so pose a problem?

Three questions:

1. Should the absent party be joined? [FRCP 19(a)]
2. If the outside absent should be joined, can s/he be joined? [Deals with problems of personal and subject matter jurisdiction.]
3. If the outside absent should be joined and cannot be joined, what happens?

1.    Should the absent party be joined?

3 kinds of required parties:

First, R. 19(a)(1)(A) party “in that person's absence, the court cannot accord complete relief among existing parties.” AKA situations where not bringing the outsider in would be unfair those already in the action.

Example: Doc enters a contract to buy plutonium for his time machine/car from Biff and George McFly. He subsequently learns that they misrepresented the grade of the plutonium and sues Biff to rescind the contract (i.e. make it void). Rescinding the K as to Biff would not be be helpful to Doc if the contract isn’t also rescinded as to McFly. So we’d want McFly joined too, if feasible. McFly is an FRCP 19(a)(1)(A) party.

Example: The Martin Flemmer Company (“Flemmer”) leases office space to Charlie Kaufman Productions (“Kaufman”), who in turn subleases the 7 and a half floor to LesterCorp. After Lester Corp takes possession, it discovers that the elevator does not properly stop on the 71/2 floor and asks for a minor alteration. Kaufman is required, under the sublease, to make reasonable accommodations. But under the original lease it cannot make changes without Flemmer’s approval and does nothing. Lestercorp sues Kaufman for specific enforcement of the sub-lease. Here too you cannot get full relief without joining the absentee. The court can order Kaufman to fix the elevator, but Kaufman cannot do so without Flemmer’s permission, so it makes sense to join Flemmer in order to get complete relief between the original parties in the case.

Other examples: Let's say you have five people party to the contract, each of whom is supposed to supply a different element of a device, and you want specific performance. Well, unless you can get all five of them before the court, you're not going to get effective specific performance. Similarly, you're not going to get effective reformation of the contract, if that's what you're trying to do. Similarly, if you have five owners of a piece of property, and you're trying to subdivide the property, or partition the property, or determine whether a security interest on the property is valid, you really need all five co- owners. This should strike you as being very commonsensical. If you want to distribute an estate or an insurance policy, you really need everybody before the court. Otherwise, you can't do effective relief for those who are before the court.

Second, FRCP 19(a)(1)(B)(i) party: “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest.”  AKA situations where it would be unfair to the outsider.

(Note: as a “practical matter impair or impede the person's ability to protect the interest” is somewhat problematic language. If I ran a school that was segregated pre-Brown, is there an argument that Brown as a practical matter impaired or impeded my interest such that I’d have to be joined? The problem with this language is that it appears as though it can be read such that everyone or no one will be a necessary party. Very tangled jurisprudence. For our purposes it is enough that you get the stock “common fund” problem application.)

Example: With the stock market collapsing, the federal government creates (through statute) a common fund to distribute money to investment banks based on an established formula that takes into account, inter alia, the number of employees they maintain, how much of their investment is in stocks, etc. One such bank, Gekkobank sues claiming its allotment under the fund is inadequate. The other banks would be required parties under this section. Giving more to Gekkobank means less for everyone else. Unless they are part of the lawsuit, they may, as a practical matter, not have their interests in getting their money protected.

Other examples: in any case in which you're adjudicating the rights to a limited fund, say an insurance policy. You have four people before the court on a $100,000 policy, and a fifth person is outside the courthouse. Well those four people before the court may exhaust the insurance policy, leaving nothing for the outsider.

Notice the rule says as a “practical matter” not as a legal matter. Bad precedent for you could be enough to give you an interest in the case, as a legal matter, but that’s not the test.

Third, FRCP 19(a)(1)(B)(ii) party: “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:... (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.”

Example: Alfred owns a California hotel. He sells it to Norman, who plans on running it with his mother. As part of the sale $50,000 is put in escrow with the Bank of America, on the condition that it will be released to Alfred if he completes all specified repairs by a fixed date. Alfred sues the bank claiming the repairs that were done were adequate, and so he is entitled to the escrow money. Norman believes that the repairs to the showers were inadequate, and therefore the funds should be released to him. Here is a case where the bank is damned if it does and damned if it doesn’t. Imagine that Alfred wins his suit and the court orders the bank to shell the money out to Alfred, who is suing it. Well then ten days later Norman sues asking for the funds. The bank is at risk of being subject to inconsistent obligations. The wisest course would be to bring both Alfred and Norman before the same court in one suit, the judgment that would enter would be binding as to both of them.

Note: Some cases fall within more than one subdivision of FRCP 19(a)(1). That’s fine.

Note: Where there is joint and several liability among joint tortfeasors (you can sue anyone of them for the full amount), joint tortfeasors are not required parties (Temple v. Synthes Corp., S. Ct. 1990). Your torts professor will teach you more about joint and several liability.

2.    Can that party be joined?

Example: Doc (CA) enters a contract to buy plutonium for his time machine/car from Biff (MA) and George McFly (CA). He subsequently learns that they misrepresented the grade of the plutonium and sues Biff to rescind the contract (i.e. make it void). Assume no AIC problems. The court concludes that George is an FRCP 19(a) required party. Can that party be joined? No, there is an SMJ problem in that adding him would destroy diversity. Notice also that supplemental jurisdiction is not going to help here because § 1367(b) lists claims “by Pls against persons made parties under . . . Rule 19.”

There may also be cases where there is no PJ over the party to be joined, though this is one place where the bulge rule of FRCP 4(k)(1)(b) comes in handy.

3.    If that party cannot be joined, what should you do?

3 Options: (i) Let the case go on without the absent party. (ii) Dismiss the case. (iii) Go forward without the absent party, but try the judgment to provide appropriate relief to the parties.

In the old days: you would just dismiss the action for want of an indispensable party. This was done through FRCP 12(b)(7): Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion . . . (7) Failure to join a party under Rule 19.

So in the old days, if there were a hundred people who owned Blackacre, and you could only join 99 of them when apportioning, you threw out the whole case.

As litigation became increasingly complex (i.e., multi-party) this had to be softened. If we can’t divide blackacre the action is stalemated, and sometimes division is critical (e.g., someone desperately needs the money from a sale) and this caused proceduralists to re-think the issue. This is the realist story, the formalist story has to do with a move away from thinking of the lack of FRCP 19 required parties as a deficit in SMJ and thus power of the court, and into something else.

The softened modern approach version is shown by FRCP 19(b):

(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:

(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;

(2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures;

(3) whether a judgment rendered in the person's absence would be adequate; and

(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

This just screams “discretion.” “Equity and good conscience.” Judges are encouraged to be creative. For example, if you have people entitled to a settlement and one is truly unavaivable, a trial court judge COULD divide the settlement and hold one share in escrow for the missing claimant. But judge could still just dismiss if he preferred. This is very fact intensive analysis.

II.    Intervention.

This is for a 3rd party who is not brought in by the other parties, but just wants to “parachute in.” The person does not have a death wish; usually it is because some of their rights are at risk of being violated. A good example comes from the recent Proposition 8 litigation where none of the parties (the challengers, California) wanted to defend the constitutionality of Proposition 8, so it fell to an outside party – the Proposition 8 sponsors – to defend the constitutionality of the statute, and they entered the fray through intervention. Even though we distinguish “permissive” from “as of right” both are voluntary, nothing forces an FRCP 24 intervenor to come in.

(Note: Just to make matters more complicated, the fact that you can intervene in the district court does not mean you can necessarily take an appeal when the initial parties do not want to. This was one of the key issues in the Proposition 8 case in the Supreme Court.)

There are two kinds of intervention in the federal system, covered by Rule 24.

1.    Intervention as of Right.

When you meet the requirements, you have a right to intervene. The Rule says you can have intervention as of right when (a) a federal statute says so; Or (b) you can have intervention as of right when the lawsuit is about an interest or property, and the disposition of the action may, as a practical matter, impair or impede the intervenor's ability to protect himself, and existing parties do not adequately represent that interest (3 conjunctive requirements).

The middle requirement of (b) is really the flip side of FRCP 19(a)(1)(B)(i) party: “that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest.” But here the indispensable party is seeking to get in not someone already in the litigation who has to join them.

In terms of the third requirement that “existing parties do not adequately represent that interest,” there is a whole complex jurisprudence about this. The basic idea is that this litigant needs to bring to the table something that is overlooked or ignored if only existing litigants were allowed in. This is supposed to be a minimal bar.

Even though this is “as of right” it still has to be “timely” and if you try to intervene too late you will be blocked.

Examples of intervention as of right:

2.    Permissive Intervention.

The Rule says permissive intervention when (1) the statute gives you a conditional right to intervene, or (2) intervenor's claim or defense has a common question of law or fact with the main action. [FRCP 24(b)]

Permissive intervention is always discretionary. Among the reasons it will be denied is that it causes undue delay or prejudice, for example it would require reopening discovery.

The court can also allow intervention for only limited purposes rather than general purpose intervention.

Examples of permissive intervention:

You cannot intervene if it would destroy SMJ, for example by destroying diversity. Can you use supplemental jurisdiction? In some cases, no, look at § 1367(b), which for diversity cases explicitly prevents supplemental jurisdiction for Rule 24. Statute says it does not reach “claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules.” So you cannot reach a claim by Pl against intervenor, or a claim by intevenor as Pl in this circumstance.

Because intervenor is coming in voluntarily, there is no PJ problem (she has waived it).

Intevenors are NOT amici, who are merely friends of the court and not parties to the lawsuit.

III.    Interpleader.

Imagine I pick up your laptop, and hold on to it. You sue me and say it is yours. Well I want to give it away. But I also know that two other students think it is their laptop and will sue me too . . . what am I to do? Well it is like a “hot potato” – I want to get rid of it, and interpleader is a rare and exotic device meant to do that.

It is designed to deal with complex, multi-party litigation. Paradigmatic case: several parties claiming the right to singular piece of property. For example, several people fighting the Met over the ownership of a Picasso.

There are two different ways interpleader can be invoked: the party holding the property can turn the property over to the court and have the claimants fight it out amongst themselves or the party can turn the property over to the court and become one of the claimants themselves.

There are two different kinds of interpleader.

1.    Statutory Interpleader.

This is more powerful but only applies when there is more than $500 at stake. Found in 28 U.S.C. §§ 1335, 1397, 2361. Why is it more powerful? Because we can get a lot of parties into the claim. Permits venue in any judicial district where claimant resides, and nationwide service of process to reach all claimants. Also nationwide personal jurisdiction, remember FRCP 4(k)(1)(C)! Requires minimal not complete diversity between the claimants; the citizenship of the stakeholder is irrelevant.

2.    Rule Interpleader.

FRCP 22. This is the less powerful cousin, what you’d use if you had something less than $500 on the table. Requires either FQ or Diversity jurisdiction to be fully satisfied, including complete diversity between the stakeholder and the claimants, and AIC if you go that route. Does not authorize nationwide service of process.

The part Bibliographical References is an important feature of the Anthology assisting readers and users in pursuing further research. The body of the biographical knowledge is an integral part of Swiss law and legal culture as represented in the Anthology.

This bibliography follows the structure and the sequence of the part on Americanization

James H. Hutson, Swiss and the American Revolution, excerpt, in The Sister Republics, Switzerland and the United States from 1776 to the Present, Library of Congress, Washington DC, 1991, p.13 – 23

Paul Widmer, Der Einfluss der Schweiz auf die amerikanische Verfassung von 1787, in Schweizerische Zeitschrift für Geschichte, 1988, S.359-389

The Federalist Papers, Alexander Hamilton, James Madison and John Jay, excerpt: The Federalist, No. 19: James Madison (with the assistance of Alexander Hamilton), Bantam Classic edition, reissue 2003, New York, p. 106-112

The Antifederalist, writing by the opponents of the Constitution, ed Herbert J. Storing, Chicago and London 1981, excerpt: A Farmer, 28. March 1788, p. 265-272

James H. Hutson, Swiss and the American Constitution, excerpt, in The Sister Republics, Switzerland and the United States, from 1776 to the Present, Library of Congress, Washington DC, 1991, p. 24 - 31

Albert Gallatin, Memorandum on Louisiana Purchase (1803), in Melvin I. Urofsky/ Paul Finkelman, Documents of American Constitutional History, volume I, 2002, p. 162-165

Gordon A. Craig, The Economic Takeoff, excerpt, in The Triumph of Liberalism, Zurich in the Golden Age 1830 - 1869, New York - London, 1988, p.95 - 120

District Court, N.D. California, UNITED STATES V: SUTTER; June 10th 1861 (Westlaw, Hoff. Dec. 27, 27FOO8.1368 and Supreme Court of the United States No. 258, The United States, Appellants vs John A. Sutter - Appeal from the District Court U.S. for the Northern District of California (Westlaw.69US.562.1864WL6589 (U.S.Cal.)

Johann August Sutter, excerpts, Die Besitznahme des Landes durch die Vereinigten Staaten, Der Bau der Mühlen und die Entdeckung des Goldes, Das Goldfieber, Der Zusammenbruch, in Neu-Helvetien, Lebenserinnerungen des Generals Johann August Sutter, transcribed and edited by Erwin E. Gudde, Frauenfeld und Leipzig, 1934, p.83-110

Blaise Cendrars, in Gold: The Marvellous History of General John August Sutter,  chapters 6, para 25, and chapters 7,8,9,10,11,12,13,14,15,16, 1925, translated from the French, L'Or, ou la merveilleuse histoire du Genéral Johann August Sutter, Edition Denoel, Paris, 1947, 1961, 2001, translation first published 1982, p. 71 - 128

Stefan Zweig, The Discovery of Eldorado - J. A. Sutter, California, January 1848, in Decisive Moments in History, Twelve Historical Miniatures, Arlachne Press, 1999, german original text first published in Leipzig 1927, Die Entdeckung Eldorados - J. A. Sutter, Kalifornien, Januar 1848 in Sternstunden der Menschheit, Leipzig 1927, first published as "Film eines phantastischen Lebens" Johann August Sutter on April 25th 1926 in the Neue Freie Presse, Vienna

James Hutson, Swiss and the American Civil War, excerpt, in The Sister Republics, Switzerland and the United States from 1776 to the Present, Library of Congress, Washington DC, 1991, p. 42 - 50
Heinz K. Meier, The Period of the Civil War, excerpt, in The United States and Switzerland in the Nineteenth Century, The Hague, 1963, p.70-91

Alan Dershowitz, excerpts, Introduction Part V, The Civil War, and The Trial of Captain Henry Wirz in America on Trial, Inside the Legal Battles that Transformed our Nation, New York, Boston, 2004, p.133 - 138 and p. 146 - 151

The Court Martial of Henri Wirz - General Court Martial orders No 607 - Executive Mansion November 3, 1865 - Court Martial of Henri Wirz Charges and Specifications (www.civilwarhome.com/ch- argesandspecifictions/htm) – Finding of the Court (civilwarhome.com/findingofcourt.htm) - (www.civilwarhome.com/ wirzcourtmartial)

James H. Hutson, Swiss-American Peacemaking: The Alabama Affair and the League of Nations, excerpt, in The Sister Republics, Switzerland and the United States, from 1776 to the Present, Library of Congress, Washington DC, 1991, p. 51 - 57

William E. Rappard, The Initiative, Referendum and Recall in Switzerland, in William E. Rappard: Varia Politica, publiés ou réimprimés à l’occasion du soixante-dixième anniversaire de William E. Rappard Zürich 1953, p. 121-155

James H. Hutson, Swiss and American States Constitutions, excerpt, in The Sister Republics, Switzerland and the United States from 1776 to the Present, Library of Congress, Washington DC, 1991, p. 58 - 65

Heinz K. Meier, Rappard, Wilson and the League of Nations, excerpt, in Friendship under Stress, US - Swiss Relations 1900 - 1950, Berne, 1970, p. 107 – 123

Raymond R. Probst, "Good offices"; in The light of Swiss international practice and experience, Dordrecht/Boston/London, 1989; excerpt: Chapter III, "Good offices": The Swiss experience, p. 17-70

Louis Menand, excerpt, Agassiz, p. 97 - 116 and Brazil, p 116 - 148 in The Metaphysical Club - A story of ideas in America, New York, 2001

Stephen Jay Gould, Louis Agassiz, – America's theorist of polygeny, excerpt, in the Mismeasure of Man, revised and expanded, New York, 1980, 1996, p. 74 – 82

Interpellation 07.3486, Louis Agassiz vom Sockel holen und dem Sklaven Renty die Würde zurückgeben, eingereicht am 22. Juni 2007 und Antwort des Bundesrats vom 12. September 2007

Alexis de Tocqueville, Democracy in America, edited by J.P Mayer, 1994, excerpt: What distinguishes the Federal Constitution of the United States of America from another Federal Constitution, p. 155-157

Alexis de Tocqueville, Democracy in America, edited by J.P Mayer, 1994; excerpt: Appendix II Report given before the Academy of Moral and Political Sciences on January 15, 1848 on the subject of M. Cherbuliez Book entitled On Democracy in Switzerland, p. 736-749

Karl W. Deutsch, Die Schweiz als ein paradigmatischer Fall politischer Integration, Bern, 1976, p. 8-64, geringfügig überarbeitete Abschrift der Tonband-Aufzeichnung von Daniel Frei des von Karl Deutsch in der Schweiz in deutscher Sprache gehaltenen Vortrages

William Rappard, Pennsylvania and Switzerland; the Americanisation of the Swiss Constitution, 1848 in Varia Politica, publiés ou réinprimés à l’occasion du soixante-dixième anniversaire de William E. Rappard, Zurich, 1953 p. 316-338

James H. Hutson, Americans and the Swiss constitution of 1848, excerpt, in The Sister Republics, Switzerland and the United States from 1776 to the Present, Library of Congress, Washington DC, 1991, p. 32 – 41

Alfred Kölz, Neuere Schweizerische Verfassungsgeschichte, Ihre Grundlinien vom Ende der alten Eidgenossenschaft bis 1848, Berne 1992; excerpt: 8. Forderungen nach geschriebener Verfassung, Verfassungsänderung und Verfassungsrat, p. 54-57

Alfred Kölz, Neuere Schweizerische Verfassungsgeschichte, Ihre Grundlinien vom Ende der alten Eidgenossenschaft bis 1848, Berne 2004; excerpt: 28. Kapitel, Staatsideen aus dem „atlantischen" Raum, p. 919-920

Johann Jakob Rüttimann, Vorrede, excerpt, in Das nordamerikanische Bundesstaatsrecht verglichen mit den politischen Einrichtungen der Schweiz, Zurich, 1867, p. IV - VIII

Emilie Kempin-Spiry, Die Rechtsquellen der Gliedstaaten und Territorien der Vereinigten Staaten von Amerika: Mit vornehmlicher Berücksichtigung des bürgerlichen Rechts, Zurich, 1892, reprinted 2013, 78 pages

Eveline Hasler, excerpts, in Flying with WIngs of Wax - A biographical novel, The Story of Emily Kempin-Spyri, translated and published 1993, New York, originally published in German, Die Wachsflügelfrau, Zürich, 1991

Wolfgang Wiegand, Die Rezeption des amerikanischen Rechts, in Die schweizerische Rechtsordnung in ihren internationalen Bezügen, Festschrift zum Juristentag 1988, Bern 1988, p. 229-262

Jens Drolshammer, excerpt: The Role and the Tendencies of Americanization for Legal Systems, Legal Professions and Legal Educations in the Area of the International Practice of Law, in The Effects of Globalization on Legal Education, Zurich, 2003, p.1 - 63

Regina Kiener/ Raphael Lanz, Amerikanisierung des schweizerischen Rechts - und ihre Grenzen, „Adversarial Legalism" und schweizerische Rechtsordnung, Zeitschrift für Schweizerisches Recht, Band 119, 2000, I. Halbband, Heft 2, S. 155-174

Peter Böckli, Osmosis of Anglo-Saxon Concepts in Swiss Business Law, in The  International Practice of Law, Liber Amicorum für Thomas Bär und Robert Karrer, ed. Nedim Vogt et al., Basle, Frankfurt am Main, 1997, p. 9-29

Heinrich Koller, Die Amerikanisierung des Schweizerischen Rechts - Beispiele aus der Gesetzgebung, in Jens Drolshammer, „From the Horse's Mouth" - Rechtsberufe am Wind der Amerikanisierung: Betroffenheit und Umgang mit der amerikanischen Rechtskultur durch Leiter von Rechtsabteilungen schweizerischer multinationaler Unternehmungen, durch international tätige Rechtsanwälte, Verwaltungs- und Regulierungsbehörden sowie durch Gerichte in der Schweiz und Europa, 2007/2008, in Jens Drolshammer, A Timely Turn to the Lawyer?, Globalisierung und die Anglo-Amerikanisierung von Recht und Rechtsberufen - Essays. Zurich/Baden-Baden, 2009, p. 215 - 22

Heinz Aemisegger, Die Bedeutung des US-amerikanischen Rechts bzw. der Rechtskultur des common law in der Praxis schweizerischer Gerichte - am Beispiel des Bundesgerichts, Archiv für Juristische Praxis, 2008, p. 18-30

Peter Nobel, Wirtschaftsrecht?, in Wirtschaft in Theorie und Praxis, Festschrift für Roland von Büren, ed. Peter V. Kunz, Dorothea Herren, Thomas Cottier, René Matteotti, Basle, 2009, p. 973-992

Peter Saladin, 1. Kapitel: Die Religionsfreiheit, excerpt in Grundrechte im Wandel, Die Rechtsprechung des Bundesgerichts in einer sich wandelnden Welt, Berne, 3. Auf., 1982, p. 2-21

Jens Drolshammer, The Global Groove of the Harvard Yard - Personal aspects of the person in the Globalisation and the Anglo-Americanisation of law and legal professions, in Zeitschrift für Schweizerisches Recht, 2009, p. 317-352

Jens Drolshammer, Zur Situationalität der Unternehmensjuristen als International Lawyers im Spannungsfeld von Globalisierung und Anglo-Amerikanisierung, in In-House-Counsel in internationalen Unternehmen, ed. S. Hambloch-Gesinn, Beat Hess, Andreas L. Meier, Reto Schiltknecht, Christian Wind, Basle 2010, p. 263-279

Daniel Frei, Das Washingtoner Abkommen von 1946: Ein Beitrag der schweizerischen Aussenpolitik zwischen dem Zweiten Weltkrieg und dem Kalten Krieg, in Schweizerische Zeitschrift für Geschichte, Band 19 (1969), Heft 3, p. 567 - 619, link http://retro.seals.ch/openurl?rft.issn=0036-7834&rft.date=1969&lPage=567&PDFRequested=true

Dietrich Schindler, Neutrality and Morality; Developments in Switzerland and in the International Community, in American University International Law Review, Volume 14, 1998, p. 155 - 170

Detlev Vagts, Editorial Comment, Switzerland, International Law and World War II, in American Journal of International Law, 1997, S. 466-475

Stuart E. Eizenstat, Foreword; Under Secretary of Commerce for International Trade, Special Envoy of the Department of State on Property Restitution in Central and Eastern Europe, U.S. and Allied Efforts to Recover and Restore Gold and Other Assets Stolen or  Hidden by Germany During World War II, Prepared by William Slany, The Historian, Department of State with the Participation of various Departments and Federal Agencies, May 1997, p. III - XII

Detlev Vagts, Jens Drolshammer and Peter Murray, Mit Prozessieren den Holocaust bewältigen? Die Rolle des Zivilrechts und Zivilprozesses beim Versuch der Wiedergutmachung internationaler Katastrophen, in: Zeitschrift für Schweizerisches Recht (ZSR) Vol. 118, 1999, p. 511-528.

Thomas Maissen, V Worum ging es?, excerpt from Verweigerte Erinnerung, Nachrichtenlose Vermögen und die Schweizer Weltkriegsdebatte 1989-2004, Zurich, p. 645 - 662

CASE NO: 09-20423-CIV-Gold / MCALILEY / United States of America Petitioner vs. UBS AG, Respondent / Amicus Brief of Government of Switzerland, 2009 and CASE NO: 09-20423-CIV-Gold / MCALILEY / United States of America Petitioner vs. UBS AG, Respondent / Amicus Government of Switzerland to Petitioner's, June 3 Submission, 30 pages

Thomas Cottier / René Matteotti, The Treaty Request Agreement between the Swiss Confederation and the United States of America of August 19, 2009 (UBS-Agreement): Principles and Domestic Applicability, Legal opinion for the Federal Office of Justice of Switzerland, in Archiv für Schweizerisches Abgaberecht, December 2009 - January 2012, p. 349 – 402

Xavier Oberson, Récents développements dans le droit de l'assistance internationale en matière fiscale, notamment avec les Etats-Unis: sept leçons à tirer de « l'affaire UBS », in Genève au confluent du droit interne et du droit internationale, Mélanges offert par la Faculté de droit de l'Université de Genève à la Société Suisse des Juristes à l'occasion du Congrès 2012, Geneva - Zurich - Basle, p. 135-164

Thomas Cottier, „Tax fraud or the like": Überlegungen und Lehren zum Legalitätsprinzip im Staatsvertragsrecht, in Zeitschrift für schweizerisches Recht, 2011, I, p. 97-122

Jens Drolshammer/Nedim Vogt, English as the Language of Law?, An Essay on the Legal Lingua Franca of a Shrinking World, Zurich, Basle, Geneva, 2003, p. 1-59, (with an extensive bibliography, Further Reading and References, p. 61-95)

Arthur T. von Mehren/ Peter Murray, Law in the United States, Cambridge University Press, 2007; excerpt: final chapter The United States and the global legal community, Cambridge University Press, New York City, p. 273-298

Texts on Swiss Law and Legal Culture in English language

The reader and user interested in what has been published on Swiss Law in English may turn to Nedim Vogt and Jens Drolshammer, general editors, Anne M. Wildhaber, Urs Watter and Michele Bernasconi as editors of the Swiss Law Bibliography, Basel. Geneva. Munich 2005. The origins of this undertaking - the first attempt to publish a bibliography of English language materials on Swiss Law - lay in our own efforts to efficiently locate and gather a steadily increasing amount of publications and information on Swiss Law in English. The principal aim of this Swiss Law Bibliography is to make Swiss laws and the Swiss Legal System more easily accessible to the large English-speaking legal community in the world.

Selection of additional texts by Swiss authors on the impact of Americanization on Swiss law and legal culture

A reader and user interested to take note what other texts have been written in Switzerland on the impacts of American law and Swiss law and legal culture may turn to the following texts:

Gunther Arzt, Amerikanisierung der Gerechtigkeit, die Rolle des Strafrechts (Vortrag, Heft 7, Infointerne Sommer 1996), hrsg. vom Bernischen Obergericht unter der Mitarbeit der Generalprokuratur und der kantonalen Justiz-, Gemeinde- und Kirchendirektion.

Gunther Arzt, 'Verfahrensgerechtigkeit - ein hochtheoretisches Thema und seine praktische Bedeutung' in Kurt Schmoller (ed.), Festschrift für Otto Triffterer  (Wien, New York 1996) p. 527-549.

Carl Baudenbacher, 'Some Remarks on the Method of Civil Law' Texas International Law Journal (1999) p. 334-360.

Peter Böckli, 'Droit des marchés de capitaux - La vie se resserre' Schweizerische Zeitschrift für Wirtschaftsrecht (1995) p. 218.

Peter Böckli, 'Osmosis of Anglo-Saxon Concepts in Swiss Business Law' in  Nedim Peter Vogt et al., The International Practice of Law: Liber Amicorum for Thomas Bär and Robert Karrer(Basel, Frankreich, The Hague, London and Boston 1997) p. 9-30.

Corporate Governance auf Schnellstrassen und Holzwegen, NZZ 26./27. Februar 2000, Nr. 48.
Robert E. Herzstein, 'The Effect on Switzerland of the Extraterritorial Application of United States Laws', in Raymond Probst, Einblicke in die schweizerische Aussenpolitik, zum 65. Geburtstag von Staatssekretär Raymond Probst (Zürich 1984) p. 153-170.

Heinrich Honsell, Amerikanische Rechtskultur, in Der Einfluss des europäischen Rechts auf die Schweiz: Festschrift für Roger Zäch (Zürich 1999).

Regina Kiener and Raphael Lanz, 'Amerikanisierung des schweizerischen Recht- und ihre Grenzen, «Adversarial Legalism» und schweizerische Rechtsordnung' ZSR (2000) p., 155-174.

Franz Riklin, ‚The Death of Common Sense - kritische Gedanken zur gegenwärtigen amerikanischen Kriminalpolitik' in Andreas Donatsch and Niklaus Schmid (eds.), Strafrecht und Öffentlichkeit: Festschrift für Jörg Rehberg (Zürich 1996).

Wolfgang Wiegand, 'Reception of American Law in Europe' American Journal of Comparative Law (1991) p. 229.

Wolfgang Wiegand, 'Americanization of Law; Reception or Convergence?' in Lawrence M. Friedman/Harry W. Scheiber (ed.) Legal Culture and the Legal Profession , (Boulder Colorado and Oxford 1996) p. 137.

Wolfgang Wiegand, Die Rezeption amerikanischen Rechts, in Die schweizerische Rechtsordnung in ihren internationalen Bezügen, Festschrift zum Schweizerischen Juristentag 1988 (Bern 1988) p. 229.

Wolfgang Wiegand, 'Europäisierung - Globalisierung - Amerikanisierung' Jahrbuch Junger Zivilrechtswissenschaftler 1998, Vernetzte Welt - Globales Recht, (Stuttgart, München, Hannover, Berlin, Weimar, Dresden 1998) p. 9-17.

Wolfgang Wiegand, 'Europäisierung, Globalisierung und/oder Amerikanisierung des Rechts?, insbesondere des Bank- und Wirtschaftsrechts' in Theodor Bauns, Klaus J. Hopt and Norbert Horn (eds.), Corporations, Capital Markets and Business in the Law (Kluwer Law International 2000) p. 601-615.

Niklaus Schmid, Das angelsächsische Strafverfahrensrecht - Vorbild für eine künftige eidgenössische Strafprozessordnung, Abschiedsvorlesung vom 1. Juli 1999, Universität Zürich.

Extensive bibliographies are to be found in Nedim Vogt and Jens Drolshammer on the function of the English language in Switzerland in the book by Jens Drolshammer, The Effects of Globalization on Legal Education, An agenda from a European Perspective for the Interdisciplinary Training of a New International Commercial Lawyer (Zürich, Basel and Geneva 2003); and in the book by Jens Drolshammer and Michael Pfeifer, editors, The Internationalization of the Practice of Law (The Hague 2001). Extensive further bibliographical references may be found in Jens Drolshammer, A timely turn to the Lawyer? Globalisierung und die Anglo-amerikanisierung von Recht und Rechtsberufung - Essays (Zürich, St. Gallen and Baden 2009).

Alexander Hamilton (January 11, 1755 or 1757 - July 12, 1804) was a founding father, soldier, economist, political philosopher, one of America’s first constitutional lawyers and the first United States Secretary of the Treasury.

As Secretary of the Treasury, Hamilton was the primary author of the economic policies of the George Washington administration, especially the funding of the state debts by the federal government, the establishment of a national bank, a system of tariffs, and friendly trade relations with Britain. He became the leader of the Federalist Party, created largely in support of his views, and was opposed by the Democratic-Republican Party, led by Thomas Jefferson and James Madison.

Hamilton served in the American Revolutionary War. At the start of the war, he organized an artillery company and was chosen as its captain. He later became the senior aide-de-camp and confidant to General George Washington, the American commander-in-chief. He served again under Washington in the army raised to defeat the Whiskey Rebellion, a tax revolt of western farmers in 1794. In 1798, Hamilton called for mobilization against France after the XYZ Affair, and secured an appointment as commander of a new army, which he trained for a war. However, the Quasi-War, although hard-fought at sea, was never officially declared. In the end, President John Adams found a diplomatic solution that avoided war.

Of illegitimate birth and raised in the West Indies, Hamilton was effectively orphaned at about the age of 11. Recognized for his abilities and talent, he came to North America for his education, sponsored by people from his community. He attended King’s College (now Columbia University). After the American Revolutionary War, Hamilton was elected to the Continental Congress from New York. He resigned to practice law, and founded the Bank of New York.

Hamilton was among those dissatisfied with the first national constitution, the Articles of Confederation, because it lacked a president, courts, and taxing powers. He became a driving force behind the Annapolis Convention, which successfully called on Congress to issue a call for the Philadelphia Convention to create a new constitution. He was an active participant and played a major role in the ratification process by writing half of the Federalist Papers, to this day the single most important source for Constitutional interpretation. In the new government under President George Washington, he was appointed the Secretary of the Treasury. An admirer of British political systems, Hamilton was a nationalist who emphasized strong central government, and successfully argued that the implied powers of the Constitution could be used to fund the national debt, assume state debts, and create the government-owned Bank of the United States. These programs were funded primarily by a tariff on imports and later also by a highly controversial excise tax on whiskey.

Embarrassed when an extra-marital affair with Maria Reynolds became public, Hamilton resigned from office in 1795 and returned to the practice of law in New York. However, he kept his hand in politics and was a powerful influence on the cabinet of President Adams (1797-1801). Hamilton’s opposition to John Adams helped cause Adams’ defeat in the 1800 elections. When Thomas Jefferson and Aaron Burr tied in the Electoral College, Hamilton helped defeat his bitter personal enemy Burr and elect Jefferson as president. After opposing Adams, the candidate of his own party, Hamilton was left with few political friends. In 1804, as the next presidential election approached, Hamilton again opposed the candidacy of Burr. Taking offense at some of Hamilton’s comments, Burr challenged him to a duel and mortally wounded Hamilton, who died within days.

References: http://en.wikipedia.org/wiki/Alexander_Hamilton