Comparative and Foreign Law Commons^™

Performing Legality: When And Why Chinese Government Leaders Show Up In Court, Rachel E. Stern, Jieun Kim, Benjamin L. Liebman

Faculty Scholarship

Since 2015, Chinese government leaders have been required by law to appear in court when citizens sue their unit or to designate an employee to take their place. We frame this policy as a demand on leaders to “perform legality,” sacrificing their time to demonstrate how seriously the government takes legal proceedings. Drawing on an original dataset of 127,529 administrative lawsuits decided between 2015 and 2018, we investigate how often government leaders appear in Chinese courtrooms, and for which kinds of cases. Overall, leaders attended 24.72% of hearings. Contrary to the State Council’s instructions to prioritize attendance in lawsuits that …

Out From The Shadows: Party Documents In Chinese Courts, Benjamin L. Liebman, Eva Gao, Xiaohan Wu, Rachel E. Stern, Margaret Roberts

Faculty Scholarship

The Communist Party’s influence over the Chinese legal system is generally assumed to be behind the scenes, largely invisible to outside observers. Since General Secretary Xi Jinping came to power in 2012, there has been renewed attention within and outside of China to the relationship between the Communist Party and the legal system. Much of this recent writing has emphasized the degree to which Xi’s efforts to affirm Party superiority and break down barriers between the Party and the State reflects a profound shift in governance and a reversal of a decades-long effort to distinguish between Party roles and those …

Legitimacy Throughlines In The Structural Design Of International & "Internationalized" Criminal Tribunals, Michael J. Kelly

Notre Dame Journal of International & Comparative Law

Today, the rather surprising and sudden surfeit of prosecutions for international crimes by states utilizing universal jurisdiction as we open the second decade of the 21^st Century may represent a preference for domestic over international criminal prosecution altogether. Yet, the legitimacy quotient remains a key part of the discussion. For example, as discussed in section V below, with respect to the crime of Russian aggression against Ukraine, opinion is divided as to whether prosecution for this crime should proceed from a newly created international tribunal or from an “internationalized” court within the Ukrainian judicial system.[1] Ukraine backs the …

Climate Change In The Courts: A 2024 Retrospective, Maria Antonia Tigre, Margaret Barry

Sabin Center for Climate Change Law

Drawing from the jurisdictions covered in the Sabin Center's United States (U.S.) and Global Climate Litigation databases, this report offers insights into key developments, emerging themes, evolving legal strategies, and the pulse of climate litigation in 2024. The report identifies eight major thematic areas of climate litigation, namely (i) climate change in international and regional courts and tribunals, (ii) constitutional and human rights cases, (iii) GHG emissions in EIAs, (iv) factoring climate impacts and obligations into government decision-making, (v) non-compliance with climate commitments, (vi) climate displacement, (vii) greenwashing and climate-washing cases, and (viii) nuisance and other claims against major emitters.

Contesting And Controlling Abortion In China’S Courts, Molly Bodurtha, Benjamin L. Liebman, Li Chenquian, Xiaohan Wu

Faculty Scholarship

The decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization has brought renewed global attention to how legal systems protect and restrict women’s reproductive autonomy. Central themes have included how the rollback of reproductive rights in the United States coincides with the judiciary’s embrace of a broader “jurisprudence of masculinity” and the relationship between abortion restrictions and authoritarianism, as multiple countries have enacted restrictive measures while undergoing democratic backsliding.

Yet, the scholarly conversation on abortion, democracy, and how courts reflect and entrench gender disparities entirely omits China — the largest authoritarian state and a country …

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

Battling Batson: State V. Andujar And New Jersey's Efforts To Fix A Broken Doctrine, Eli Shahar

Cardozo Law Review

No abstract provided.

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

Japan’S Transnational War Reparations Litigation: An Empirical Analysis, Timothy Webster

Faculty Scholarship

Negotiating war reparations is traditionally the province of the political branches, yet in recent decades, domestic courts have presided over hundreds of compensation lawsuits stemming from World War II. In the West, governments responded to these lawsuits with elaborate compensation mechanisms. In East Asia, by contrast, civil litigation continues apace. This Article analyzes eighty-three lawsuits filed in Japan, the epicenter of Asia’s World War II reparations movement. While many scholars criticize the passivity of Japanese courts on war-related issues, this Article detects a meaningful role for Japanese courts in the reparations process: awarding compensation, verifying facts, and allocating legal liability. …

Foreign Judgments: The Limits Of Transnational Issue Estoppel, Reciprocity, And Transnational Comity, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

In Merck Sharp & Dohme Corp v Merck KGaA [2021] SGCA 14, a full bench of the Singapore Court of Appeal addressed the limits of transnational issue estoppel in Singapore law, and flagged possible fundamental changes to the common law on the recognition and enforcement of foreign judgments in Singapore. The litigation involves multiple parties spread over different jurisdictions. The specific facts involved in the appeal are fairly straightforward, centring on what has been decided in a judgment from the English court, and whether it could be used to raise issue estoppel on the interpretation of a particular term of …

Who Will Save The Redheads? Towards An Anti-Bully Theory Of Judicial Review And Protection Of Democracy, Yaniv Roznai

William & Mary Bill of Rights Journal

Democracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches. …

Were Justices Lawyers?, Thomas J. Mcsweeney

Popular Media

No abstract provided.

Legal Genres, Thomas J. Mcsweeney

Popular Media

No abstract provided.

Who Are The "We"?, Thomas J. Mcsweeney

Popular Media

No abstract provided.

Public Defenders' Offices In Brazil: Access To Justice, Courts, And Public Defenders, Alexandre Dos Santos Cunha

Indiana Journal of Global Legal Studies

This essay discusses the impact of public defenders' offices in promoting equality through the enforcement of the right to access to justice in Brazil. To achieve this goal, this note is divided into two parts.

Part I presents the Brazilian public defenders' offices, their history, institutional design, rights, and prerogatives. Part II discusses the role played by public defenders in the enforcement of the right to access to justice in Brazil, as well as the relations established between public defenders and courts. The Conclusion attempts to assess the sustainability of the Brazilian model, in order to determine if there is …

Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney

Faculty Scholarship

This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system – identifying Argentina’s as the provinces, the …

An Alternative Path To Rule Of Law: Thailand's Twenty-First Century Administrative Courts, Frank W. Munger, Peerawich Thoviriyavej, Vorapitchaya Rabiablok

Articles & Chapters

New courts in Asia’s rapidly developing states offer an opportunity to understand how a court system takes root in a society. This article presents a case study of the development of administrative court structure, functions, and practice in Thailand: Southeast Asia’s newest system of administrative courts. The study examines why courts made sense to those who established them and how the courts’ authority is being utilized. For relatively powerless and resource-poor litigants, barriers to litigation may be many, but when these barriers are overcome, administrative courts exercise extraordinary influence, even when they fail to render a decision fully vindicating a …

Re-Sentencing Reform: A Comparative Analysis Of The Juvenile Justice System In The United States, United Kingdom, Colombia And Australia, Vianca I. Picart

ILSA Journal of International & Comparative Law

No abstract provided.

A Comparison Of The American Model And French (-Inspired) Appellate Model, Frederic Blockx

Duke Law Master of Judicial Studies Theses

Both the American and the French legal system have a three-tiered structure. However, the respective roles and functions of the courts on each step of the ladder is vastly different in both. Whereas the general system in the U.S. is to have one trial court and two ‘higher’ courts (a court of appeals and a supreme court), the French / European continental system consists of two ‘factual’ courts (the basic level and the court of appeals), and one ‘legal’ (the supreme court) with limited or even inexistent possibilities to look at the facts.

The purpose of this thesis is to …

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional …

Courts And Arbitration: Reconciling The Public With The Private, Susan L. Karamanian

Arbitration Law Review (2009 - Present)

No abstract provided.

Judicial Federalism In The European Union, Michael Wells

Scholarly Works

This article compares European Union judicial federalism with the American version. Its thesis is that the European Union’s long-term goal of political integration probably cannot be achieved without strengthening its rudimentary judicial institutions. On the one hand, the EU is a federal system in which judicial power is divided between EU courts, of which there are only three, and the well-entrenched and longstanding member state court systems. On the other hand, both the preamble and Article 1 of the Treaty of Europe state that an aim of the European Union is “creating an ever closer union among the peoples of …

The Emergence Of Mediation In Korean Communities, Peter Robinson, J. Youngjin Lee, J. Kwang Ho Lim, Ryul Kim

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Taking Constitutional Identities Away From The Courts, Pietro Faraguna

Brooklyn Journal of International Law

In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …

Soes And State Governance: How State-Owned Enterprises Influence China's Legal System, Zheng Lei, Benjamin L. Liebman, Curtis J. Milhaupt

Faculty Scholarship

Most of the existing literature on Chinese SOEs asks how state ownership affects their governance. This chapter turns the question on its head: How do SOEs affect state governance in China? The chapter begins by distinguishing different modes of interaction between the Party-state and SOEs. Focusing on these modes of interaction, the chapter analyzes how SOEs have influenced China’s legal system. This chapter discusses the ideological and positional advantages enjoyed by SOEs in their legal treatment, and provide an analysis of SOEs’ impact on legislation, administrative rulemaking and in particular, the courts. It concludes by exploring a key implication of …

Military Tribunals And Due Process In Post-Revolutionary Egypt, Bianca C. Isaias

The International Lawyer

No abstract provided.

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale

Faculty Scholarship

In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of resources. …

Not So Far Away: Visiting With Women Judges In China, Ann Marshall Young

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Education For Judicial Aspirants, Keith R. Fisher

Journal of the National Association of Administrative Law Judiciary

Introductory judicial education (IJE) is an avenue for improving both appointive and elective systems of judicial selection. The impetus for considering this topic can be traced back to lingering unease with judicial selection and the ongoing (though now somewhat stagnant) debate over merit selection. Moreover, changes in the nature of law practice and the judicial role over the past several decades have rendered the gap between those two activities increasingly large. Moreover, surveys of minority communities have consistently demonstrated a far lower degree of confidence in the impartiality and fairness of our nation’s judges. IJE is an effort to maximize …