February 18, 2011
Childress on the Erie Doctrine and International Law
Professor Donald Earl Childress III (Pepperdine) has posted on SSRN a draft of his article When Erie Goes International, which will be published in the Northwestern University Law Review. Here's the abstract:
This Article challenges the widely held belief that the Erie doctrine automatically applies in private international law cases – namely, cases where a United States federal court is asked by private litigants to apply foreign, non-United States law. Under the conventional understanding, the Erie doctrine not only requires federal courts to apply the law of the state in which the court sits but also to apply that state’s conflict-of-laws rules, even when those rules direct the court to apply the law of a foreign country. This Article argues that courts should question the mechanistic application of a doctrine announced in the 1930s (and updated to conflict of laws in the 1940s and 1970s) to the realities of private international litigation today, especially in light of more recent Supreme Court cases concerning constitutional constraints on choice of law. Among other findings, the Article provides empirical evidence uncovering a previously unrecognized connection in the scholarly literature: internationalizing the Erie doctrine may in part explain the increased use of the forum non conveniens doctrine by federal district courts. The Article also reframes the ongoing and contested scholarly debate between Professors Curtis Bradley, Jack Goldsmith, Harold Koh, and others regarding the application of Erie to customary international law in light of Erie’s application in private international law cases. The Article not only provides a new empirical and scholarly lens through which to view the international application of the Erie doctrine but also offers a suggested approach to be employed by courts when faced with such cases.
October 28, 2010
Halberstam and Reimann on Federalism (comparative)
Daniel Halberstam and Mathias Reimann (University of Michigan) have posted Federalism and Legal Unification: A Comparative Empirical Investigation of 20 Legal Systems to SSRN.
How and to what degree do federations produce uniform law within their system? Our comparative empirical study addresses this question comprehensively for the first time by examining legal unification in twenty federal systems around the world. We present the means and methods of legal unification, the degree of legal unification of each system (and of particular areas of the law within each system), and a first attempt to explain the driving forces of legal unity and diversity in federations more generally.
October 18, 2010
Knutsen on Deterence of Litigation in Canada
Erik S. Knutsen (Queens University Faculty of Law) has posted The Cost of Costs: The Unfortunate Deterence of Everyday Litigation in Canada to SSRN.
Costs today play a disproportionate role in many civil litigation decisions in Canada because of the inherent unpredictability built into the current overly complex costs system. Canada’s civil litigation system utilizes a fee shifting regime whereby an unsuccessful litigant must pay a proportion of the successful litigant’s legal fees. This costs system is designed to regulate litigation behaviour by deterring unmeritorious cases, by indemnifying successful litigants, by fostering efficient lawyer behaviour, by promoting settlement of disputes, and by ensuring access to the civil litigation system so that the cost of litigating is not out of reach for litigants. In today’s economy, however, the system is trying to do too much, and with too much at stake. The original system was put in place at a time when litigation costs were very often in reasonable proportion to the amount in dispute. Presently, the cost to litigate can quickly eclipse the value of what is at stake in the dispute. A summary judgment motion, for example, may cost upwards of the cost of a family vehicle for the average Canadian. In the minds of litigants and lawyers, unpredictable issues of legal costs often replace issues of substance at the heart of a litigated dispute. While the cost of civil litigation to an individual litigant has certainly increased over time, the increase is not due solely to the cost a litigant pays his or her own lawyer. An increase in the overall cost of litigation thus means an additional increase in costs the loser in a case must pay to the successful litigant, as well as to the loser’s own lawyer. If the loser is an average, middle-income earning Canadian litigating a standard contract or injury dispute, such a loss can be economically impossible to bear. Litigation costs through fee shifting have thus become a fundamental driving force in the Canadian civil litigation.
Courts in Canada exercise wide discretion in assessing costs through fee shifting and costs awards have become unpredictable as a result. This has led to an inability of litigants to ex ante predict their exposure to adverse cost awards. Risk averse litigants, especially those middle income Canadians with some financial exposure such as a house to lose, tend to shy away from the civil litigation system. This is how concern for costs can often eclipse the substantive rights being asserted in a particular case. Everyday litigants who are non-corporate individuals whose litigation costs are not covered by insurance cannot easily defray the financial burden of an adverse cost award. They are most likely to have cost concerns weigh heavily in the decision to advance a claim at all. However, should costs be driving litigation results? Should costs be driving access to the civil litigation system, particularly for the everyday litigants in Canada who have a house or modest savings to potentially lose?
Part I of this Article details how Canada’s fee shifting costs regime operates in a fashion to create a complex and unpredictable litigation dynamic. The Article explains the myriad of variables informing how legal costs are calculated in Canada and how lawyers, clients, and courts have difficulty in estimating financial exposure to such costs. In addition to the fee shifting system, the amount a litigant must pay her own lawyer plus Canada’s pre-trial settlement cost incentives also play large roles in how costs affect litigation decision-making in Canada. Part II of the Article attempts to define the everyday Canadian litigant who is most negatively affected by the current costs system because of an inability to internalize a negative costs award. The everyday litigant is in the most precarious position of potential litigants because costs drive a myriad of access to justice concerns for that group. Part III critically evaluates the costs landscape in Canada and concludes that costs, not the substantive legal claims of the litigants, are disproportionately driving the civil litigation system in Canada for everyday Canadian litigants. In short, costs have subsumed the substance of much Canadian litigation. This leads to not only over-deterrence of litigation in the name of settlement but to concerns about the ability of average Canadians to access the civil justice system for. Part IV evaluates possible fee regime models with an eye to informing modifications to Canada’s fee system. It recommends that Canada’s fee regime be reformed to allow for a hybrid, two-track approach. As a default, courts should adopt a one-sided pro-plaintiff fee shifting system as long as the defendant in litigation is able to somehow defray adverse cost awards through assets or insurance. If both plaintiff and defendant are litigants who cannot reasonably defray the cost of costs, a more American-style costs system of no fee shifting should govern. Settlement incentives should not be based on actual costs to litigate but instead should be a 10% uplift on final damages awarded at trial or settled. Part V concludes.
September 27, 2010
Langer on The Political Branches Regulating Role in Prosecuting International Crimes
Professor Maximo Langer (UCLA School of Law) has posted "The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes" on SSRN. It will be published in the American Journal of International Law.
The abstract states:
September 14, 2010
Amann on Women at Nuremberg
Professor Diane Marie Amann has posted "Portraits of Women at Nuremberg" on SSRN. It will be published in the American Society of International Law Journal.
The abstract states:
September 09, 2010
Erie, International Law and Guantanamo: Judge Kavanaugh's Opinion in Al-Bihani v. Obama
Last week the D.C. Circuit refused to grant en banc rehearing of its decision in Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010). The denial of rehearing (available here) was accompanied by several statements by individual D.C. Circuit judges, including one from Judge Kavanaugh that opines on the relationship between Erie and international law. From Judge Kavanaugh’s statement (some citations omitted):
[I]n light of the Supreme Court’s 1938 decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), which established that there is no federal general common law, international-law norms are not enforceable in federal courts unless the political branches have incorporated the norms into domestic U.S. law. None of the international-law norms cited by Al-Bihani has been so incorporated into domestic U.S. law.
To be sure, there was a time when U.S. courts stated that customary international law was “part of our law” so that “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators.” The Paquete Habana, 175 U.S. 677, 700 (1900). But that oft-quoted statement reflected the notion, common in the early years of the Nation but now discredited, that international law was part of the general common law that federal courts could apply.
But as decided by the Supreme Court in its landmark Erie decision in 1938, the view that federal courts may ascertain and enforce international-law norms as part of the general common law is fundamentally inconsistent with a proper understanding of the role of the Federal Judiciary in our constitutional system. In Erie, the Supreme Court famously held that there is no general common law enforceable by federal courts. Erie, 304 U.S. at 78. The Court said that “law in the sense in which courts speak of it today does not exist without some definite authority behind it.” Id. at 79 (quotation omitted). Erie means that, in our constitutional system of separated powers, federal courts may not enforce law that lacks a domestic sovereign source.
Judge Kavanaugh also writes that Erie overturned the so-called Charming Betsy canon, under which federal courts should construe ambiguous U.S. statutes to be consistent with international law: “[I]n the post-Erie era, the canon does not permit courts to alter their interpretation of federal statutes based on international-law norms that have not been incorporated into domestic U.S. law. Indeed, since Erie was decided, the Supreme Court has applied that canon only to support the presumption that a federal statute does not apply extraterritorially.”
(Hat Tip: Jonathan Hafetz)
September 01, 2010
Handrlica on Exclusive Jurisdiction and Forum Shopping in the EU
Jakub Handrlica (Charles University in Prague - School of Law) has posted Exclusive Jurisdiction vs. Forum Shopping in European Nuclear Liability Law to SSRN.
Obviously, two rather contradictory principles regarding the jurisdiction are currently in force in the European Union. On one hand, the international nuclear liability conventions clearly follow the provisions of liability channelling and concentrate all proceedings to one court. On other hand, the Brussels I. Regulation obviously prefers to make the plaintiff possible to choose between submitting its claims by the court in the country where incident occurred and by the court in his home country. This paper aims to identify interfaces between these two contradictory principles with special attention to the possibility to enforce the judgments issued by courts of non-convention states (i.e. Austria, Ireland, Luxembourg) in those member countries, which are contracting parties either to the Paris or to the Vienna Convention.
August 25, 2010
Skinner on International Law Violations and "Arising Under" Jurisdiction
Professor Gwynne Skinner (Willamette University College of Law) has posted "When Customary International Law Violations 'Arise Under the Laws of the United States'" on SSRN. It will be published in the Brooklyn Journal of International Law.
The abstract states:
August 18, 2010
Huang on Interregional Recognition & Enforcement of Civil & Commercial Judgments in China
Professor Jie Huang (Duke University School of Law; Shanghai Institute of Foreign Trade School of Law) has posted "Interregional Recognition and Enforcement of Civil and Commercial Judgments: Lessons for China from US and EU Laws" on SSRN. It will be published in the Journal of Private International Law.
The abstract states:
August 17, 2010
Rau on Primary Jurisdiction
Alan Scott Rau has posted Understanding (and Misunderstanding) "Primary Jurisdiction" to SSRN.
In our “Westphalian” regime of international arbitration, conflict and competition between national jurisdictions, with overlapping and yet plausible claims to supervise the process, become inevitable. The conventional starting point for any discussion - the fulcrum around which the entire arbitral enterprise pivots - has been the supposed dichotomy between the state of the “seat” - where the arbitration finds its juridical “home,” and whose jurisdiction over the process is therefore “primary” - and all other states whose jurisdiction must therefore be deemed only “secondary.” Both legislation and Convention envisage an exclusive role for the former in setting the process in motion - for example, by appointing the arbitrators - and above all in monitoring compliance with the agreement - for example, by annulling or vacating the resulting award.
That the “seat” is the privileged starting point with respect to any allocation of judicial authority has traditionally been a simple reflection of the power of any sovereign over acts taking place within its “territory”; an alternative and perhaps more robust explanation would be somewhat more “contractualist,” giving priority to the parties’ exercise of autonomy in the very act of selecting the place of arbitration - and to the intuition that, by extension, they have presumptively chosen to subject themselves both to a certain body of “arbitration law,” and to the supervisory jurisdiction of the courts charged with applying that law.
I begin by canvassing the various fact patterns in which the traditional allocation of international competence on the basis of “primary” and “secondary” jurisdiction might possibly be thought useful: It has become, for example, the heuristic of choice to test the extraterritorial effect of an award, in circumstances where the agreement of the parties has subjected the arbitral process to a particular legal system whose own courts have found it lacking in legitimacy. All this is much controverted, but generally well understood.
The inevitable problem, though, is that none of this is a universal solvent - the world can after all be understood and patterned and divided up in all sorts of ways. What may have begun as a rough attempt to allocate responsibility over the unfolding of the process, has often been unthinkingly applied to all sorts of new and unexpected and inappropriate contexts.
Where, for example, a party has asked a court to enjoin an arbitration against him that has been threatened or initiated - perhaps on the fundamental ground that he has never even given his assent - American courts will increasingly hold that, whatever power they might have to enjoin a “local” arbitration, it would be “inconsistent with the purpose of the New York Convention” to enjoin arbitral proceedings in a state of “secondary jurisdiction” - and thus they “lack jurisdiction” to do so. Where a party has claimed that a foreign award has been obtained by bribery and corruption, and wishes to institute a “collateral attack” in this country through a RICO action, it may equally be held that the court lacks “subject matter jurisdiction” to reassess an award rendered in a state of “primary jurisdiction”; “under the framework of the New York Convention, the proper method of obtaining this relief is by moving to set aside or modify the award in a court of primary jurisdiction.”
American courts thus seem curiously mesmerized, when asked to deploy familiar procedural devices in aid of their nationals, by a rhetoric invented for quite different purposes. What purports in cases like these to be a commendable solicitude for the needs of international arbitration, takes the form of an abdication of any decision making power whatever, in favor of the courts of the seat. To invoke a putative lack of “power” based upon absolute prohibitions that supposedly emanate from the Convention seems a crude and clumsy and overbroad and irresponsible way of responding; even a legal system quite committed, for example, to the proposition that attempts to evade the arbitral process are likely to be quite without merit - or for that matter to the proposition that international neutrals cannot possibly be corrupt - need not shrink, on the prophylactic grounds of lack of jurisdiction, from testing any challenges.
August 14, 2010
Kalajdzic on the Globalization of Class Actions in Canada
Professor Jasminka Kalajdzic (University of Windsor Faculty of Law) has posted "The Globalization of Class Actions: Canada" on SSRN.
The abstract states:
August 09, 2010
Dahdal & Gillies on In Rem Actions in Australia
Professors Andrew Dahdal (Macquarie University, Macquarie Law School) and Peter S. Gillies (Macquarie University, Macquarie Law School) have posted "Characterising the Action in Rem in Australia and the Implications on International Commercial Arbitration" on SSRN. It will be published in the Journal of Maritime Law and Commerce.
The abstract states:
August 02, 2010
Three New Comparative Articles
Alexei Trochev has posted Meddling with Justice: Competitive Politics, Impunity, and Distrusted Courts in Post-Orange Ukraine to SSRN.
Remo Caponi has posted Italian Civil Justice Reform 2009 to SSRN.
Dorota Leczykiewicz has posted 'Effective Judicial Protection' of Human Rights after Lisbon: Should National Courts Be Empowered to Review EU Secondary Law? to SSRN.
Abstracts after the jump.
Contrary to the theories of judicial empowerment that argue that the presence of strong political opposition is necessary for the development of an independent judiciary, the increasing fragmentation of power in today’s Ukraine goes hand-in-hand with judicial disempowerment - dependent courts regularly provide important benefits to rival elites.
The Italian Civil Justice Reform 2009 (Law no. 69 of 18,h June, 2009 and, based on this law, Legislative Decree no. 28 of 4th March) 2010) has amended several provisions of the Code of Civil Procedure (CCP), but it has left untouched the root causes of inefficiency of the Italian civil justice system.The causes of the unreasonable length of civil proceedings in Italy are many. There are too few judges in relation to the number of disputes to resolve. Many judicial districts are too small and should be merged. The judges are not assisted by law clerks in the preparation of their decisions. Judges often do not even have their own room to work. The presidents of the courts are appointed by the Supreme Council of the Judiciary (Consiglio Superiore della Magistratura) which often takes no account of their managerial skills. The number of court clerks is insufficient to cover the needs. Finally, e-justice still remains very marginal. None of these problems has been addressed by the 2009 reform. There is a need for political will, and human and material resources, which are not there. Therefore, we are satisfied with the modification of only the written words in the law's text. In this paper I do not examine all the innovations of the 2009 reform, but only the most important ones.
The article carries out a structural assessment of the EU system of protection of human rights after the entry into force of the Treaty of Lisbon. It compares the method of protecting human rights in EU law before and after Lisbon, and argues that the question of whether amendments introduced by the new Treaty ensure that the system of protection is complete cannot be answered unequivocally. It is only when the Court of Justice has had the opportunity to interpret art.275 TFEU that we will be able to determine whether all gaps in protecting human rights have been filled. Thus, the article advocates a return to the proposition made by A.G. Mengozzi in Gestoras and Segi as a solution to the potential problem of “incompleteness” of remedies. It explains that recognition of national courts’ power to review EU secondary-law not only complies with the existing doctrine but also improves the status of human rights in EU law and, despite suggestions to the contrary, leaves the position of the Court of Justice as the sole judicial arbiter of Union law intact.
July 21, 2010
Philipsen & Faure on Fees for Personal Injury Claim Settlement in the Netherlands
Professor Niels J. Philipsen (Maastricht University Faculty of Law, Metro) and Professor Michael G. Faure (University of Maastricht Faculty of Law, Metro; Erasmus University Rotterdam School of Law) have posted "Fees for Claim Settlement in the Field of Personal Injury: Empirical Evidence from the Netherlands" on SSRN. It will be published in the Journal of European Tort Law.
The abstract states:
June 24, 2010
Varghese on Comparative Evaluation of Judicial Appointment Processes
Professor John Varghese (Government Law College, Kozhikode) has posted "Judicial Appointments--The Domain Game" on SSRN.
The abstract states:
June 17, 2010
Jayasurya on Judicial Accountability and Transparency in India
Gautam Jayasurya (Rajiv Gandhi National University of Law) has posted "Judicial Accountability and Judicial Transparency: Challenges to Indian Judiciary" on SSRN.
The abstract states:
University of Toronto Law Journal: Special Issue on Judicial Review
Readers may be interested in some of the contributions to the recently published special issue of the University of Toronto Law Journal, which includes:
David Dyzenhaus, Adam Tomkins
The Role Of The Courts In The Political Constitution
Judicial Restraint In The Pursuit Of Justice
Deference, Defiance, And Doctrine: Defining The Limits Of Judicial Review
The Very Idea of a Judge
Judicial Review at The Margins: Law, Power, and Prerogative
Democratic Objections to Structural Judicial Review and the Judicial Role in Constitutional Law
Structural Judicial Review and the Objection From Democracy
Abstracts and links available at Concurring Opinions.
June 07, 2010
For those with a continuing interest in the Bhopal Disaster
The BBC reports that eight former employees of the Union Carbide plant in Bhopal, India have been sentenced to two years in jail a piece. The charge was "death by negligence."
May 05, 2010
Gelinas on Judicial Independence in Canada
Professor Fabien Gelinas (McGill University) has posted "Judicial Independence in Canada: A Critical Overview" on SSRN. It will be published in "Judicial Independence in Transition -- Strengthening the Rule of Law in the OSCE Region," Anja Seibert-Fohr, ed. (Max Planck Institute Series, "Beitraege zum Auslaendischen Oeffentlichen Recht und Voelkerrecht, Heidelberg: Springer, 2010).
The abstract states:
May 02, 2010
Bauer and Braun on the Role of Class Actions in Long-Term Performance of Distressed Firms
Rob Bauer and Robin Braun (Maastricht University) have posted Long-Term Performance of Distressed Firms: The Role of Class Action Lawsuits to SSRN.
Does shareholder litigation pay off for investors over long horizons and how much does the type of allegation matter‘ We study whether a disciplining effect occurs for distressed firms and their managers and examine two different groups of allegations. Allegations of violations of duty of loyalty effect individuals only, but duty of care pertains to the corporate entity. After litigation we observe a general transformation in firm characteristics and risk exposures, which is consistent with theory. Although generally negative, short- and long-term performance effects differ substantially between types of allegations. We observe performance reversals only in firms with individual directors accused of insider trading. Effects are similar for firms with triggering events that precede the initiation of a lawsuit. At the same time we fail to observe a simultaneous decrease in financial health in the form of their expected default frequency. Our results have important implications for regulator and institutional investor decision-making and monitoring strategies: whether to use litigation to exert control on managers, even in the presence of dual holdings of debt and equity.