Comparative and Foreign Law Commons^™

Finding Justice Scalia In Burma: Constitutional Interpretation And The Impeachment Of Myanmar's Constitutional Tribunal, Dominic J. Nardi Jr.

Washington International Law Journal

While the comparative courts literature has yielded valuable insights into confrontations between political elites and judges, we still know relatively little about if and how jurisprudential methodology affects the ability of constitutional courts to survive such crises. How does the choice between originalism versus living constitutionalism affect a court’s relationship with the other branches of government? Do political elites tend to be more hostile towards certain methods of interpretation? The 2012 impeachment of Myanmar’s Constitutional Tribunal presents an interesting example of the interplay between jurisprudence and politics. After fifty years of military rule, Myanmar’s 2008 Constitution produced a new civilian …

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner

Georgia State University Law Review

This essay is a critical response to the 2013 commemorations of the75th anniversary of the Federal Rules of Civil Procedure.The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice”with decisions according to law.

By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g.,plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary …

Mediation As The Key To The Successful Transfer Of The Case Of Jean-Bosco Uwinkindi From The Jurisdiction Of The Ictr To The Republic Of Rwanda, Taylor Friedlander

Pepperdine Dispute Resolution Law Journal

The article discusses on the history of the Rwanda Genocide of 1994 and the International Criminal Tribunal for Rwanda (ICTR) and different systems of justice that should be involved in prosecuting Jean Bosco Uwinkindi, the suspect of the mass killing at the Rwanda Genocide. It also mentions that three separate processes undertaken in Uwinkindi's gacaca court hearings, including truth-telling, truth-hearing, and truth-shaping.

Will What Happened In Ecuador 
Stay In Ecuador? How The Existing
 International Due Process
 Analysis May Be Ineffective In 
Keeping Fraudulent Foreign 
Judgments Out Of U.S. Courts, Christopher Lento

Richmond Journal of Global Law & Business

Recent evidence in the decades-old Chevron/Ecuador litigation suggests that the $18 billion judgment rendered against Chevron by an Ecuadorian court may have been a product of conspiracy and fraud on an almost unprecedented scale. However, these allegations overshadow fundamental problems in the method by which U.S. courts determine whether judgments rendered in foreign jurisdictions may be enforced against defendants in the United States.

Under the current jurisprudential regime, courts that are faced with the question of whether a foreign judgment is enforceable in the United States follow what is termed the “international due process analysis.” In this analysis, the court …

Ghana’S Jury System On Trial, Dennis D. Adjei

Duke Law Master of Judicial Studies Theses

Civil cases in Ghana are tried by the bench. Criminal cases are also handled by bench trials, except for certain indictable offenses, which may be tried by a judge or jury. Not all serious offenses are tried by jury. And a trend is developing away from jury to bench trials. For example, treason is punishable by death, but the case is determined in a bench trial by three High Court Judges. Robbery, which had been an indictable offense, is now tried by either jury or bench trial at the discretion of the Attorney-General; and prosecutors consistently have been opting for …

Technology, Ethics, And Access To Justice: Should An Alogrithm Be Deciding Your Case?, Anjanette H. Raymond, Scott J. Shackelford

Michigan Journal of International Law

At a time of U.S. budget cuts, popularly known as the “sequester,” court systems across the nation are facing financial shortfalls. Small claims courts are no exception. Among the worst hit states is California, which is suffering staffing cutbacks that result in long delays prompting consideration of the old maxim, “justice delayed is justice denied.” Similar problems, albeit on a larger scale, are evident in other nations including India where the Law Commission has argued that the millions of pending cases combined with the lagging uptake of technological best practices has impeded judicial productivity, leading to “disappointment and dissatisfaction among …

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing?, Mark A. Summers

Richmond Journal of Global Law & Business

No abstract provided.

Frivolous Motions And Abuses Of Process At The Ad Hoc International Criminal Tribunals, Devon Whittle

Cardozo Journal of International and Comparative Law

The article examines the application of rules sanctioning frivolous or abusive motions at the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). While these rules are essential to prevent abuse of process, their application lacks consistency and clarity, leading to concerns about bias and undermining the principle of equality of arms. The article argues that developing a standardized framework for applying these rules would enhance fairness, reduce allegations of prejudice, and provide clearer guidance for counsel.

When Courts Determine Fees In A System With A Loser Pays Norm: Fee Award Denials To Winning Plaintiffs And Defendants, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

Under the English rule, the loser pays litigation costs whereas under the American rule, each party pays its own costs. Israel instead vests in its judges full discretion to assess fees and costs as the circumstances may require. Both the English and the American rules have been the subjects of scholarly criticism. Because little empirical information exists about how either rule functions in practice, an empirical study of judicial litigation cost award practices should be of general interest. This Article presents such a study in the context of Israel’s legal system. We report evidence that Israeli judges apply their discretion …

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Working Paper Series

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is its role …

“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Mckinley Brennan

Working Paper Series

John Locke understood human happiness to amount to the removal of "uneasiness." This paper argues that,to the extent that the United States is a nation dedicated to "the pursuit of happiness" understood as the removal of "uneasiness," same-sex unions or marriages should be given legal recognition. While Locke defended a variation on traditional marriage on the grounds of progenitiveness and care for dependent offspring, his more foundational commitment to the importance of the removal of uneasiness precludes, on pain of inconsistency, limiting marriage to opposite-sex couples. This paper argues, furthermore, that conservatives and neo-conservatives who celebrate this nation's being …

The Future Of Securities Class Actions Against Foreign Companies: China And Comity Concerns, Dana M. Muir, Junhai Liu, Haiyan Xu

University of Michigan Journal of Law Reform

In Morrison v. National Australia Bank Ltd., the U.S. Supreme Court limited the application of U.S. securities fraud law in transnational situations. The Supreme Court noted that its decision was influenced by international comity considerations. In this Article, we evaluate the availability of class actions in China in cases involving alleged securities fraud. Because we find that the availability of those actions is too limited to fully protect U.S. shareholders, we argue that U.S. investors should be permitted to bring securities fraud class actions against non-U.S. companies whose securities are traded on a U.S. exchange regardless of where those investors …

Public Interest Litigation And The Transformation Of The Supreme Court Of India, Manoj Mate

Contributions to Books

Published as Chapter 10 in Consequential Courts: Judicial Roles in Global Perspective, Diana Kapiszewski, Gordon Silverstein & Robert A. Kagan, eds. (2013).

The Supreme Court of India today is arguably one of the most powerful constitutional courts in the world. The Court has taken on an active and central role in the governance of the Indian polity through its activity in public interest litigation cases, and in some cases, has virtually taken over functions that were once the domain of Parliament and the Executive. Within the past two decades, the Indian Court wrested control over judicial appointments from the Executive, …

Prosecuting Those Bearing Greatest Responsibility: The Lessons Of The Special Court For Sierra Leone, Charles C. Jalloh

Articles

This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence "to prosecute those who bear the greatest responsibility" for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the …

Potentiate Liability And Preventing Fault Attribution: The Intoxicated “Offender” And Anglo-American Dépecage Standardisations, 47 J. Marshall L. Rev. 57 (2013), Alan Reed, Nicola Wake

UIC Law Review

No abstract provided.

E-Jurors: A View From The Bench, Hon. Antoinette Plogstedt

Cleveland State Law Review

This Article provides a comparative analysis of foreign jury systems and reviews the history of juries. The Article then explores emerging technology and its effect upon electronic juror misconduct. It further identifies juror misconduct resulting from innovative technology. The Article assesses solutions initiated in various U.S. state and federal jurisdictions. The Article reviews the role of more active juries, which incorporate note taking and jury notebooks. The Article analyzes the process of juror questioning and pre-deliberation juror discussions. The Article evaluates initiatives developed in various jurisdictions to deter juror misconduct by confiscating cell phones and improving jury instructions. Finally, this …

Courts Of Appeal And Colonialism In The British Caribbean: A Case For The Caribbean Court Of Justice, Ezekiel Rediker

Michigan Journal of International Law

In recent years, a public debate on law and the colonial legacy has engaged people of all walks of life in the English Speaking Caribbean (ESC), from judges and politicians to young people in the streets. Throughout the ESC, the Judicial Committee of the Privy Council (JCPC)—based in London and composed of British jurists—has been the highest court of appeal since the colonial era. In the past decade, however, Caribbean governments have sought greater control over their legal systems. In 2005, they created the Caribbean Court of Justice (CCJ) to supplant the British Privy Council as the Supreme Court for …

Fairness And Politics At The Icty: Evidence From The Indictments, 39 N.C. J. Int'l L. & Com. Reg. 45 (2013), Stuart K. Ford

UIC Law Open Access Faculty Scholarship

No abstract provided.

International Perspectives On Correcting Wrongful Convictions: The Scottish Criminal Cases Review Commission, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Part I of this Article traces the history of the Scottish Criminal Cases Review Commission (SCCRC) and outlines the procedures employed by the SCCRC after an application is received, with particular attention to its extensive investigatory procedures. It also describes and analyzes the standards for referral of an application to the Scottish court. Part II briefly sets forth the statistics concerning applications, referrals, and judicial decisions. Part III includes an analysis of the SCCRC’s work by looking at the cases that have been referred and decided by the court. Those cases are divided into several categories: fresh evidence referrals, referrals …

The Judicial Reform In China: The Status Quo And Future Directions, Ji Weidong

Indiana Journal of Global Legal Studies

This article shows that Chinese adjudication is in a dilemma: on one hand, the judicial discretion is extensive; on the other hand, public opinion supervision is adopted to control the discretion. In fact, the public opinion and judicial discretion could co-exist and compliment one another. There is no objective and stable framework regulating both. There are attempts aiming to completely negate the judicial discretion, such as computer sentencing. A strange logic of judicial reform exists in China: either eliminating the judicial discretion through such mechanical methods as computer sentencing in the hope to guarantee judgment in conformity with the law; …

What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner

Faculty Scholarship

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why …

Contested States And The Rights And Obligations Of The Jus Ad Bellum, Christian Henderson

Cardozo Journal of International and Comparative Law

The article examines the rights and obligations of contested states under the jus ad bellum, arguing that these entities, despite lacking widespread recognition as states, should be considered international legal persons. It challenges the traditional state-only conception of international personality and advocates for a recognition-based approach, which would extend the prohibition of the use of force and the right to self-defense to contested states. The analysis highlights the complexities and contradictions in applying these principles, particularly regarding collective self-defense, and suggests that a pragmatic interpretation could balance international peace and security with the legal protection of contested states.

Understanding The Obstacles To The Recognition And Enforcement Of U.S. Judgments Abroad, Samuel P. Baumgartner

Akron Law Faculty Publications

Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to …

Rumors Of The Sharia Threat Are Greatly Exaggerated: What American Judges Really Do With Islamic Family Law In Their Courtrooms, Asifa Quraishi-Landes

NYLS Law Review

No abstract provided.

The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg, Suzanne Baer

Articles

First, I will briefly summarize the state of the art of equality law in Germany today. A distinct dimension of this story from a European Union member state is that we are not just theorizing postnational constitutionalism these days, but that we live it already, since law is not anymore isolated as national but needs to be seen in the context of transnational migration and multinational regimes. Second, I turn to a key feature and key challenge in and to equality law today. It is what I have called the triangle of fundamental rights, referring to the three most prominent …

Litigation As A Measure Of Well-Being, Theodore Eisenberg, Sital Kalantry, Nick Robinson

Cornell Law Faculty Publications

No abstract provided.

Provisional Arrest And Incarceration In The International Criminal Tribunals, Melinda Taylor, Charles C. Jalloh

Articles

This article examines the widely ignored but important issue regarding the provisional arrest and detention of persons suspected of having committed international crimes by international or internationalized courts. The paper examines the pioneer case law and practice of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon, as well as the emerging practice of the permanent International Criminal Court, to evaluate how these courts have generally addressed the rights of these individuals to due process and freedom from arbitrary arrest and detention before …

Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong

Faculty Publications

This article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.

Does The Judge Matter? Exploiting Random Assignment On A Court Of Last Resort To Assess Judge And Case Selection Effects, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

We study 1,410 mandatory jurisdiction and 48 discretionary jurisdiction criminal law case outcomes in cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors - case specialization, seniority, and workload - that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. In mandatory jurisdiction cases, individual justices cast 3,986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about 2 to …

Enforcement And Recognition Of Foreign Judgments In United States Courts: A Practical Perspective , Cedric C. Chao, Christine S. Neuhoff

Pepperdine Law Review

No abstract provided.