Monday, October 12, 2009

Comparative and International Scholarship Roundup

Here are a few recent articles posted to SSRN that address civil procedure and/or federal courts issues from a comparative and international perspective.

Amalia Kessler (Stanford Law School), Marginalization and Myth: The Corporatist Roots of France's Forgotten Elective Judiciary

Helena Gluzman (University of Toronto), On Universal Jurisdiction - Birth, Life and a Near-Death Experience?

Joanna Kulesza (University of Lodz Faculty of Law and Administration), Internet Governance and the Jurisdiction of States: Justification of the Need for an International Regulation of Cyberspace

Cormac S. MacAmhlaigh and Andrew R. Glencross, Sovereignty in the EU Constitutional Order: Integrating Law and Political Science

Abstracts after the jump.


Marginalization and Myth: The Corporatist Roots of France’s Forgotten Elective Judiciary
When American lawyers think of the French judiciary they imagine a system radically different from their own - a system, in short, of bureaucratized justice. Indeed, the French system is widely viewed as typifying the European judicial model - made perhaps most famous through John Langbein’s much cited article on The German Advantage in Civil Procedure. But while this bureaucratized model of the French judiciary is, insofar as it extends, accurate, it is also woefully incomplete and thus misleading. To depict the French judicial system in these terms is to ignore a vital component of the system (including especially the commercial and labor courts) that, while very different from the American model, is also premised on an elective judiciary. In this other, ignored component of the French judicial system, judges lack formal judicial (and usually legal) training of any kind and are elected mid-career to serve temporary terms of office. Those thus elected to office belong to the particular professional (and social) groups whose disputes they will resolve and which, in turn, are responsible for electing them. As a result, such judges are expected to have the substantive expertise (and social and political legitimacy) necessary effectively to resolve disputes among group members.

Strikingly, while France’s commercial and labor courts play a fundamentally important role in the contemporary French legal system, they have been marginalized not only within the comparative literature (largely written by American scholars), but also within standard French textbook descriptions of the French judiciary. This article provides the first account of this remarkable erasure of the French elective judiciary from the (transatlantic) scholarly literature and then addresses how this strange set of affairs came to pass. Tracing the roots of France’s elective judiciary to a set of Old Regime institutions described by contemporaries as “extraordinary courts,” the article shows that these courts were originally understood to be a form of administrative or regulatory institution, and thus to serve a clear function within the broader judicial framework. But for a variety of interrelated reasons - all stemming from the revolutionary turn against corporatism - nineteenth-century jurists ended up largely ignoring them, resulting in their marginalization within the standard account of the French judiciary. The ongoing inability to acknowledge the corporatist roots of these institutions helps explain the awkward, embattled position that they currently occupy within the French judicial landscape - including, in particular, the repeated calls for their abolition. At the same time, the failure to come to grips with history has contributed to an unfortunate narrowing of self-reflective and critical vision on the part of American comparative legal scholars, even while helping to generate a myth of the French judiciary that has shaped the professional identities of generations of lawyers, judges, and jurists on both sides of the Atlantic.

On Universal Jurisdiction - Birth, Life and a Near-Death Experience?
This paper investigates the topic of universal jurisdiction, ie the supranational prosecution and repression - without the necessity of a link between the accused and the prosecuting state - of crimes of such gravity and magnitude as to collide with certain core values accepted by the international community and transcending the peculiarity of national interests. The focus of the chapter is exactly to try and discern the scope of universal jurisdiction, distinguishing between the two different versions of universality theorized by contemporary authors: ‘conditional universal jurisdiction,' which requires the presence of the accused in the prosecuting state, and ‘absolute universal jurisdiction’, according to which the accused does not have to be present in order to make the exercise of universal jurisdiction possible. As a matter of fact, only a handful of states currently possesses national legislation covering the exercise of ‘absolute universal jurisdiction’, as a confirmation that, notwithstanding the general scholarly consent in recognizing the existence of a universality principle, no agreement actually exists about this principle’s content. By means of an historical overview of the most noteworthy examples of implementation of universal jurisdiction, Helena Gluzman displays various arguments against it - e.g. its administrative costs, the local concern connected to its enforcement and the related risk of political manipulations, the criticalities related to the need of granting the accused a due process of law - showing the shortcomings of such jurisdiction with particular regard to its less wellaccepted form (the ‘absolute’ one), whose theoretical foundations seem to have been historically undermined by the Nuremberg and Eichmann experiences. Prominent exercises of absolute universal jurisdiction, however, also illustrate its practical pitfalls, as the associated political and administrative costs seem to widely outweigh the benefits of universality.

Internet Governance and the Jurisdiction of States: Justification of the Need for an International Regulation of Cyberspace

The issue of Internet governance is taking a forever more important place in the debate on the future shape of international society. Regarding the fact that national governments have decided to regulate the international cyberspace with state laws, it seems quite certain that the starting point for all considerations of Internet governance should be the analysis of the existing rules upon which the regulating states base their competences - the rules of international jurisdiction.

The paper thoroughly discusses the traditional principles of international jurisdiction, shows their practical applications known so far and contrasts them with new circumstances, specific for the Internet, in which these rules should be used. It analyses the territoriality principle, effects principle, active and passive personality principle, protective principle and the universality principle. It discusses their use in traditional international law, including a brief look at the specific concept of international spaces with their unique jurisdictional regime. It than goes on to examine each of the discussed principles for their applicability to the Internet.

The article presents also a brief look at the achievements done by international private law in the domain of international jurisdiction, as an invaluable source of experience from which the evolving cyberlaws should draw. Above all it points to the problems, encountered by private international law, bound with elaborating and applying international jurisdictional rules, that have to be analyzed in the context of cyber-activity, especially e-commerce and cybertorts.

The solution to the present jurisdictional puzzle, proposed in the article, comprises of finding an international compromise on the scope of rules best suited for the cyber realm and, if applicable, elaborating their modifications. Such a compromise should become a part of an international agreement. The solution should constitute a new regime of Internet governance, elaborating it however is not possible without clearly setting out the basic rules of jurisdiction, that obviously must be altered to fit the evolving circumstances.

Sovereignty in the EU Constitutional Order: Integrating Law and Political Science
This paper examines how law and political science have studied the role played by sovereignty claims in the EU constitutional order. Typically, it is argued, the two disciplines have studied sovereignty in the EU from parallel perspectives, with the former emphasising the dimension of the internal sovereignty of the EU and the latter focusing on member states’ enduring external sovereignty in relation to the international system. This divergence is explained by virtue of contrasting institutional units of analysis (courts vs. representative institutions). The consequence is the absence of a shared understanding of where Kompetenz-Kompetenz, the power to decide who decides in the EU system, lies. In the light of this analysis, three models of sovereignty are then discussed as models for spanning the disciplinary boundary. These are the Westphalian, post-sovereign and confederal models of sovereignty. Amongst them, the paper concludes, it is the latter that seems to offer the greatest opportunities for reconciling insights from law and political science.

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