Monday, January 18, 2010

Scholarship round-up: comparative law and judging

Three articles recently posted to SSRN address issues of judging in a comparative or non-U.S. context.

Tom Ginsburg (University of Chicago Law School) Judicial Independence in East Asia: Implications for China

This chapter explores the experience of China’s East Asian neighbors with regard to judicial independence, with an eye toward drawing lessons for China’s own reforms. Japan, Korea and Taiwan collectively provide a useful vantage point to examine developments in China because their rapid growth from the 1950s through the 1990s represents that greatest sustained example of rapid growth in world history. The only comparable period of growth is that of contemporary China, now nearing the end of its third decade. The East Asian cases are also relevant to China because the countries in the region share certain cultural traditions, and because many of them developed their judicial systems during periods of authoritarian governance. Finally, the East Asian cases, like contemporary China, seem to challenge the conventional wisdom that a powerful legal system is necessary for sustained economic development. My argument is that these cases provide nuanced lessons for the Chinese case about the definition of and conditions for judicial independence.

Rosalind Dixon (University of Chicago Law School) Female Justices, Feminism and the Politics of Judicial Appointment: A Re-examination
In recent years, feminists in the United States have consistently advocated for the appointment of more female justices to the Supreme Court. Given the records of Justices O’Connor and Ginsburg on the Court and broader empirical findings below the Supreme Court level showing a relationship between a judge’s gender and her voting behavior, feminists have argued that, from a feminist perspective, the appointment of new female justices to the Court is likely to offer significant substantive, as well as symbolic, benefits. This Article challenges such feminist orthodoxy by showing that it is based on a mistaken view of existing empirical data on judicial behavior and its likely future predictive value. The article shows how, from both a quantitative and qualitative perspective, the current literature on judicial behavior in fact reveals little if any meaningful connection between a judge’s gender and her pro-feminist views, in a jurisprudential sense. By drawing on comparative experience in Canada, which between 2005 and 2008 had a female majority on its Supreme Court, the Article also shows how any female-feminist connection previously evident in the United States, particularly at a Supreme Court level, is unlikely to endure in the future, given changes in the kind and degree of discrimination experienced by female justices prior to appointment. Consequently, the Article also calls for a change in strategy on the part of feminists to focus more directly on the demonstrated jurisprudential commitments, rather than on the gender, of future judicial nominees.


Neeraj Tiwari (Indian Law Institute, New Delhi), Appointment of Judges in Higher Judiciary: An Interpretational Riddle
This paper deals with the Constitutional framework for the appointment of judges in high court and the Supreme Court in India. The framework consists of a 'consultative' process between the Executive and the Judiciary. For the first four decades, after the framing of the Constitution, this practice was followed in a decent manner with only two or three exceptions. But after the Second Judges Case in 1993, the Supreme Court do away with the existing consultative process and evolved a new system for appointment of judges in the higher Judiciary, namely "Collegium". In this system a pannel of Chief Justice of India along with two seniormost Judges of the Supreme Court (in Third Judges Case this requirement was inhanced from two to four seniormost judges) recommends the appointment of a judge. But the recent episodes revealing the incompetency and irregularity of the collegium system. the Law Commission of India, in its 214th Report has also shown deep concern on the working of the collegium and recommended for reconsideration. This paper will take up all these issues in detail.

RJE





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