Tuesday, June 21, 2016
Professors Brian J. Love (Santa Clara University School of Law), Christian Helmers (Santa Clara University Department of Economics), and Markus Eberhardt (University of Nottingham Department of Economics) have recently made public a very interesting study they have done on patent litigation patterns in Chinese courts. Their study is particular interesting in that it challenges many of the widely held assumptions that China’s relatively new patent system and the dramatic rise in patenting in China are part and parcel of a protectionist, “anti-foreign” regime.
As Love and his co-authors note in their paper (available at http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1920&context=facpubs), China did not even have a patent system until 1985. Nonetheless, due in large part to the Chinese government’s concerted efforts in the last few years to encourage patent filing and enforcement, patent applications and patent litigation in China now outstrip those in the U.S. The stated aim of the 2008 implementation of the China State Council’s National Intellectual Property Strategy is to encourage innovation, but because this campaign has focused more on increasing patenting rather than on increasing innovation, many outside China suspect that the government’s efforts are actually designed to foster piracy and “cribbing” of technologies invented outside of China. Love et al.’s findings on patent litigation in China between 2006 and 2011 contravene these suspicions in a number of ways:
Contrary to fears that foreign patentees would face bias in the Chinese court system, Love et al.’s study shows that:
- Foreign litigants were more likely to be patent enforcers than alleged infringers in Chinese patent cases and just as likely as Chinese patentees to win their cases. Median damage awards to foreign patentees were also equivalent to that of their Chinese counterparts.
- State-owned Chinese litigants, by contrast, were more likely to be accused infringers than patent enforcers, and while state-owned defendants lost only a minority of their cases, they paid
- Patent litigation was highly concentrated in large cities such as Beijing, Shanghai, and Guangzhou, where protectionist bias toward local inventors is thought to be less prevalent.
Similarly, despite suspicions that Chinese patents generally are lower in “quality” than those in the U.S. or other jurisdictions, Love et al. show that:
- The vast majority of the patents-at-issue in the cases surveyed were filed well before China’s National IP Strategy was developed and thus not the result of a haphazard flurry of patenting under the Strategy. A sizable minority of the patents-at-issue also had related patents in other jurisdictions. (Although the same invention can be claimed in various ways and different jurisdictions still vary somewhat in rigor of patent claim examination, the underlying inventions must be of high enough “quality” to achieve patent approval in multiple jurisdictions.)
- The relatively advanced age of the patents-at-issue also suggests that the patents were not part of rush to patent inventions already successful in other countries simply for immediate assertion Chinese courts. (Chinese patents with related patents in foreign jurisdictions were also presumably held by the same entity, again indicating that the inventions claimed in the Chinese patents were not simply “cribbed” from foreign inventors).
Professors Love, Helmers, and Eberhardt acknowledge, of course, that more recent patent litigation patterns may have changed since the implementation of China’s campaign to encourage patenting. Like all good scholarship, however, their study does make us think twice about many of our assumptions.
Monday, June 20, 2016
Richard L. Cupp, of Pepperdine University School of Law, has a new article on SSRN that is forthcoming in the Cincinnati Law Review. The article is entitled "Animals as More than "Mere Things," but Still Property: A Call for Continuing Evolution of the Animal Welfare Paradigm." The article compares current law in France, other nations, and the European Union highlighting animals' capacity to suffer with current law in the United States, and calls on jurisdictions in the United States to look to these other nations' approaches in emphasizing animals' special status as property capable of suffering. To read the article in full, click on the link below:
Sunday, June 19, 2016
Given the mass shootings in Orlando this week by a suspected lone wolf terrorist, in this post I highlight two SSRN articles that explore the tension between free speech and controlling the spread of terrorist advocacy.
1. Alexander Tsesis, "Terrorist Speech on Social Media," Vanderbilt Law Review, Vol. 70, 2017.
From the abstract:
The presence of terrorist speech on the Internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of civil liberties. The Supreme Court has erected a bulwark of associational and communicative protections to curtail government from stifling debate through overbroad regulations. On the other hand, the protection of free speech has never been an absolute bar against the regulation of low value expressions, such as calls to violence and destruction.
Terrorist advocacy on the Internet raises special problems because it contains elements of political declaration and self-expression, which are typically protected by the First Amendment. However, terrorist organizations couple these legitimate forms of communication with calls to violence, recruitment to training, and indoctrination to belligerence. Incitement readily available on social media is sometimes immediate or, more often, calibrated to influence and rationalize future dangerous behaviors. This is the first article to analyze all the Supreme Court free speech doctrines that are relevant to the enactment of a constitutionally justifiable anti-terrorism statute. Such a law must grant the federal government authority to restrict dangerous terrorist messages on the Internet, while preserving core First Amendment liberties. Legislators should develop policies and judges should formulate holdings on the bases of the imminent threat of harm, true threats, and material support doctrines. These three frameworks provide the government with the necessary constitutional latitude to prosecute dangerous terrorist speech that is disseminated over social media and, thereby, to secure public safety, without encroaching on speakers’ right to free expression.
2. Craig Forcese & Kent Roach, "Criminalizing Terrorist Babble: Canada's Dubious New Terrorist Speech Crime," Alberta Law Review, Vol. 53 No. 1 (2015). From the abstract:
Before the introduction of Bill C-51, the Canadian government expressed interest in a terrorism “glorification” offence, responding to Internet materials regarded by officials as terrorist propaganda and as promoting “radicalization.” Bill C-51 introduces a slightly less broad terrorism offence that applies to those who knowingly promote or advocate “terrorism offences in general” while knowing or being reckless as to whether terrorism offences “may be committed as a result of such communication.” This article addresses the merits of these new speech-based terrorism offences. It includes analyses of: the sociological data concerning radicalization and “radicalization to violence”; existing offences that apply to speech associated withterrorism; comparative experience with glorification crimes; and the restraints that the Charter would place on any similar Canadian law. We conclude that glorification offence would be ill-suited to Canada’s social and legal environment and that even the slightly more restrained new advocacy offence is flawed. This is especially true for Charter purposes given the less restrictive alternative of applying existing terrorism and other criminal offences to hate speech and speech that incites, threatens, or facilitates terrorism. We are also concerned that the new speech offence could have counter-productive practical public safety effects. We favour that part of Bill C-51 that allows for court-ordered deletion of material on the Internet that was criminal before Bill C-51, namely material that counsels the commission of terrorism offences. However, Bill C-51’s broader provision that allows for the deletion of material that “advocates or promotes the commission of terrorism offences in general” suffers the same flaws as its enactment of a new offence for communicating such statements.
Wednesday, May 25, 2016
Get the table of contents of every new volume published in Ius Gentium: Comparative Perspectives on Law and Justice.
Friday, May 20, 2016
Jenia I. Turner, of SMU Dedman School of Law, has published a new article entitled, "Plea Bargaining and Disclosure in Germauy and the United States: Comparative Lessons," at 57 Wm & Mary L. Rev. 1549 (2016). The article tracks the introduction of broader discovery in the United States that more closely resembles German rules that has occurred simultaneously with the German move closer to US style plea-based criminal justice. To read the article, in full, click on the link below:
Monday, May 9, 2016
The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) is pleased to invite submissions to fill a panel on “New Perspectives in Comparative Law,” to be held at the Society’s 2016 Annual Meeting ASCL Annual Meeting, which will be held October 28-29, 2016 at the University of Washington in Seattle. The purpose of the panel is to highlight the scholarship of new and younger comparativists. The younger scholars who are selected for the panel will each be paired with a senior discussant in their field who will provide comments and suggestions on their papers.
Submissions will be accepted on any subject of public or private comparative law from scholars who have been engaged as law teachers for ten years or fewer as of July 1, 2016. Only scholars who are affiliated with ASCL-member institutions are eligible to participate on the panel.
The Scholarship Advisory Group of the YCC will review submissions with the authors’ identities concealed. Up to two submissions will be chosen for the panel. Submissions will not be accepted from scholars whose work has been featured in a prior younger scholars' panel at the ASCL Annual Meeting.
To submit an entry, scholars should email an abstract of 1000-1500 words (including footnotes) no later than Friday, June 24, 2016, at 5:00 pm CDT to Yolanda Huggins at the following address: email@example.com. Please indicate “ASCL Annual Meeting Submission” in the subject line. Late submissions will not be accepted. Abstracts should reflect original research that will not yet have been published by the time of the Society’s Annual Meeting. The abstract should be accompanied by a separate cover sheet indicating the author’s name, title of the paper, institutional affiliation, contact information, and a statement confirming that the author (or at least one of the authors, if co-authored) has been engaged as a law teacher for ten years or less as of July 1, 2016 and is affiliated with an ASCL member institution. The abstract itself must not contain any references that identify the author or the author’s institutional affiliation.
Sunday, April 24, 2016
I'm recently back from ASCL's Works-in-Progress Workshop held last weekend at the University of Illinois College of Law. Seven papers were discussed at the workshop. If you write in the field of comparative law, having a draft selected to be discussed at this workshop is an extraordinary opportunity for receiving feedback from experts in the field. The annual conference is organized by several leading comparative law scholars including: Maximo Langer (UCLA), Jacqueline Ross (University of Illinois), and Kim Lane Scheppele (Princeton). This year, the workshop papers represented a variety of nationalities and topics in both public and private comparative law. Antonia Baraggia (University degli Studi di Milano), Wei Cui (University of British Columbia), Yuliya Guseva (Rutgers), Adam S. Hofri-Winogradow (Hebrew University), Mariana Pargendler (Escola de Direito-Brazil), and Bui Ngoc Son (National University of Singapore).
Wednesday, April 20, 2016
With special guest blogger YiYang Jiang (Clifton Wolcott), third-year undergraduate student at the School of Law, Shanghai University of Political Science and Law
China has long had the reputation for fostering rampant piracy of copyrighted works. The Chinese legal system has made great strides in addressing such piracy, including accession to various international conventions on intellectual property rights and implementation of a copyright law very similar to those in the U.S. and elsewhere. Enforcement of these copyright laws has apparently been somewhat lax in the past, but even this has improved in recent years, at least with regard to blatant reproduction of protected works. The Chinese government has heightened its copyright enforcement efforts by increasing the number of raids on counterfeiters, deliberating on several enhancements to administrative enforcement abilities, enhanced infringement penalties, and perhaps even increasing public perception of copyright infringement as illegal. Protection of copyrighted works may have a way to go yet in China, but China does seem to be making progress.
One of the issues that the Chinese copyright system is also facing is infringement not through out-and-out reproduction of a work in part or in whole but rather infringement by copying only isolated elements of a protected work in order to create a new work. Such partial copying raises issues not only of infringement but also of the copyrightability of the elements copied. A prime example of this is at issue in a case currently pending before the Northern District of California. U.S.-based companies Blizzard Entertainment, Inc. and Valve Corporation sued uCool, Inc. and China-based Lilith Games Co. Ltd. for infringement of the characters, among other elements, in Blizzard and Valve’s copyrighted video games. At least two of the characters in Lilith’s mobile game Soul Hunters, for example, are clearly copied in large part from those in Blizzards’ game World of Warcraft (“WoW”). Although not exactly like their WoW counterparts, the Lilith characters have the identical clothing, weaponry, and even skin color; the only real difference between the two sets of characters is that Lilith’s versions are more cartoon-like, two-dimensional, and cuter than WoW’s more three-dimensional and intimidating versions. Both us feel that such a high degree of imitation, although not exact reproduction, clearly indicates Lilith’s intent to free-ride on the success of Blizzard’s games.
Indeed, the characters, scenes, storylines, and other elements in Blizzard’s immensely popular and profitable games have apparently been the subject of rampant copying in China and elsewhere. Blizzard does not yet seem to have filed suit in mainland China, however, although it has filed suit in Taiwan against Longtu Games for copyright infringement of Blizzard’s characters. If Blizzard decided to file suit against Lilith and others in China, it is unclear whether Blizzard would prevail. Neither the U.S. nor the Chinese copyright statute states that characters as copyrightable subject matter, and indeed, infringement involving characters entails difficult questions of copyrightability, a problem Blizzard and Valve face in their lawsuit in the U.S. In dismissing (with leave to amend) Blizzard and Valve claim of infringement of the copyright in their games’ characters, the District Court noted that characters are most often not separately copyrightable subject matter and that the plaintiffs therefore face a significant hurdle in showing that their game characters are the exception to the rule. As with most copyrightability issues, the copyrightability of characters as stand-alone “works” depends on the particularity with which they are expressed. Blizzard could not, for example, assert a character copyright over all weapon-toting mythical creatures in general because these are stock characters common to many video games. Blizzard can, however, assert copyright ownership over a particular character if it is “especially distinctive” – whether Blizzard can meet this standard remains to be seen.
It also remains to be seen what approach the Chinese courts will take to any potential claims of character copyright infringement that Blizzard might file in the future. Chinese often apply the same legal standards that courts in the U.S. and other countries use when it comes to intellectual property cases, although the approach often varies in practice. Indeed, the Chinese courts have addressed a number of cases similar to Blizzard’s, including a number where the defendant was alleged to have copied popular cartoon characters on unauthorized consumer goods (e.g., Ltd. Shenzhen Huaqiang Digital Animation Co. v. Vanguard Superstore; Futabasha Publishers v. Ltd. Shanghai Enjia Trade Development Co.) or in video games characters (e.g., Creative Power Entertainment v. Shaanxi YouJiu Digital Technology Co., Ltd.). The Chinese courts have frequently found for the copyright owners in these cases, but in doing so, the courts have protected the copyrighted characters not as characters per se but as “fine arts” (Article 3(4)) – what under U.S. copyright law would be considered pictorial or graphic work (17 US.C. § 102(a)(5)). This is perhaps a wiser, as the copyrightability of illustrated or animated characters is easier to determine when classified as pictorial or graphic works, avoiding the question of whether the underlying character is a separately copyrightable work; where a character is based on a literary description or live-action depiction, by contrast, the determining copyrightability unavoidably involves more difficult issue of “exceptional distinctiveness.” That being said, the courts in these cases have also looked not only at the similarity between the two works but also the fame or reputation of the characters at issue, suggesting that the Chinese courts may also have implicitly adopted aspects of the U.S. approach to the copyrightability of characters more generally.
Sunday, April 3, 2016
Edward Elgar Publishing has just published the "Research Handbook on Global Administrative Law." The book is edited by Sabino Cassese,
This Handbook explores the main themes and topics of the emerging field of Global Administrative Law with contributions by leading scholars and experts from universities and organizations around the world. The variety of the subjects addressed and the internationality of the Handbook’s perspectives make for a truly global and multi-dimensional view of the field.
The book first examines the growth of global administrations, their interactions within global networks, the emergence of a global administrative process, and the development of the rule of law and democratic principles at a global level. It goes on to illustrate the relationship between global law and other legal orders, with particular attention to regional systems and national orders. The final section, devoted to the emergence of a global legal culture, brings the book full circle by identifying the growth of a global epistemic community.
The Research Handbook on Global Administrative Law provides a contemporary overview of the nascent field in detailed yet accessible terms, making it a valuable book for university courses. Academics and scholars with an interest in international law, administrative law, public law, and comparative law will find value in this book, as well as legal professionals involved with international and supranational organizations and national civil servants dealing with supranational organizations.
Here is a link to the book's Table of Contents.
Friday, March 18, 2016
Two recent articles in The Criminal Law Review highlight possible changes in the adversarial system in England.
First, new Crown Prosecution guidance allows prosecutors to prepare some vulnerable witnesses before their testimony at trial, although coaching as we know it in the United States remains forbidden. Laura Hoyano, Reforming the Adversarial Trial for Vulnerable WItnesses and Defendants,  2 Crim. L. Rev. 107.
Second, an article describes recent case law that seeks to make clear that the object of cross-examination is to investigate the truth through clear, understandable questions rather than to so-called ‘put the case’ to the witness or trap the witness in inconsistencies. Emily Henderson, Theoretically Speaking: English Judges and Advocates Discuss the Changing Theory of Cross-Examination, 2 Crim. L. Rev. 929.
Sunday, March 13, 2016
The newly launched Italian Law Journal is looking for submissions for its next issue. Submissions are now open for the next issue and are being accepted until mid-April.
If you would like to receive updates from the Italian Law Journal, please sign up for their newsletter and they will keep you posted on their activities. You can do so by sending your request to: firstname.lastname@example.org.
Sunday, February 28, 2016
This week we highlight two recent SSRN postings in the field:
1. Dmitriy Kamensky, a Fulbright Faculty Development Fellow at Stetson University College of Law, has posted "Introducing Corporate Criminal Liability in Ukraine: Terra Incognita." From the abstract:
Modern political developments, globalized economy, and further synchronization of legal systems around the world provide a unique forum for expanding existing national-law frameworks, establishing new principles and doctrines of law. Criminal law is everything but an exception. New international threats, such as terrorism, economic criminality and public corruption, require deep rethinking of national and international criminal law regimes respectively. This Article is focused on the advantages and flaws of corporate criminal liability in yet another European jurisdiction – in Ukraine. American corporate liability model will serve its virtual “sparring partner” role for the purposes of evaluating both progress and potential pitfalls on Ukraine’s way to establishing effective legal framework to combat corporate crime.
The Criminal Code of Ukraine (“CCU”) has been recently amended by introducing quasi-criminal liability for organizations in the form of specific criminal law measures. This by all means historical legislative step highlights a few significant points. First, from now on liability may be imposed on an artificial legal entity – not just a natural person. Second, Ukraine is serious about its commitment to becoming a member of the European Union. Finally, at this point of the national criminal law developments in the direction of democracy, rule of law, and free-market economy neither judiciary, law enforcement, nor legal community in general are willing to accept criminal corporate liability statutes, due to their novelty and absence of meaningful and comprehensive doctrinal explanation. Meanwhile Ukrainian legal commentary remain quite skeptical about the current model of corporate liability and argue that the traditional approach to individual criminal liability should remain the only remedy available.
2. Darryl K. Brown, University of Virginia School of Law has posted, "Free Market Criminal Justice: How Democracy and Laissez Faire Undermine the Rule of Law." This paper adds an interesting perspective on the democratic accountability of prosecutors.
Monday, February 15, 2016
We are pleased to publish this guest post by James R. Maxeiner J.D., LL.M., Ph. D. in Law (Munich), Associate Director, Center for International and Comparative Law, and Associate Professor of Law, University of Baltimore School of Law
Justice Scalia - Civil Lawyer in a Common Law America
Justice Scalia was well-known for textualism and originalism. He was known for his opposition to the Supreme Court looking to foreign law for guidance.
It is little known, however, that, notwithstanding the Justice's opposition to the Court's relying on foreign law, he was the most earnest opponent of common law methods (including stare decisis) and an ardent proponent of civil law methods.
Maxeiner, James R., Scalia & Garner's Reading Law: A Civil Law for the Age of Statutes? (August 15, 2013). 6 Journal of Civil Law 1 (2013). Available at SSRN: http://ssrn.com/abstract=2132581 orhttp://dx.doi.org/10.2139/ssrn.2132581
In Reading Law: The Interpretation of Legal Texts U.S. Supreme Court Justice Antonin Scalia and American legal lexicographer Bryan A. Garner challenge Americans to start over in dealing with statutes in the Age of Statutes. They propose ― "textualism," i.e., ― "that the words of a governing text are of paramount concern, and what they convey in their context is what the text means." Textualism is to remedy American lack of ― "a generally agreed-on approach to the interpretation of legal texts." That deficiency makes American law unpredictable, unequal, undemocratic and political. In the book‘s Foreword Chief Judge Frank Easterbrook calls the book ― "a great event in American legal culture." It is a remarkable book because it challenges common law traditions. This review essay shows how Scalia and Garner challenge common law and summarizes the content of their challenge. This essay contrasts the methods of Reading Law with the methods of the Continental civil law. It shows that textualism is consistent with modern civil law methods. It shows also, however, that pure textualism, which largely restricts interpretation to grammatical and historical interpretation and excludes non-textual interpretation such as equitable, pragmatic and purposive approaches, is not consistent with modern civil law methods. In modern civil law, textualism and non-textualism coexist. They must, if law is to honor legal certainty, justice and policy.
Friday, February 12, 2016
On February 8, President Obama signed a new bill (H.R. 515), International Megan’s Law, requiring that 1) the U.S. Immigration and Customs Enforcement Agency notify foreign officials when a convicted child sex offender is traveling to their country; and 2) the State Department put a “unique identifier” on the passports of persons who have been convicted of a sex crime involving a child (even if they were children at the time themselves and no matter when the conviction arose) who have been listed on a public sex offender registry. A lawsuit challenging the constitutionality of this law has been filed by California Reform Sex Offender Laws (CA RSOL). The plaintiffs include CEOs of major international companies who travel extensively – and innocently – for business.
The bill was signed eight days after it left Congress and four days after it was received by the White House. Supporters say that the law will help prevent sex trafficking by making it more difficult for sex offenders to “[plan] their trips around locations where the most vulnerable children can be found,” in the words of Congresswoman Ann Wagner, who co-sponsored the bill. Critics assert that there has been no connection established between people on US sex registries and international sex trafficking; that the branding of passports will do nothing to protect the United States from its own sex offenders who, indeed, will be limited in leaving the United States, even for innocuous purposes; that such limitations are unconstitutional; and that the “unique identifier” endangers the safety of such tourists and anyone flying with them. Moreover, a large percentage of people on the registry for child sex offenses were themselves minors when they were convicted, usually of engaging in sexual conduct as with a minor incapable of consent only because of age. Significantly, too, many Americans use their passports not for travel but simply for identification purposes – and those people will be unfairly subjected to all of the negative consequences of such identification.
Aside from my own personal sense that there seems to be no limit to the US urge to stigmatize and punish "the other," I can't help but ask if that urge - or any ostensible need to protect US citizens - is really justified by a law that is designed to prevent sex crimes in other countries. Significantly, other countries' sex registry rules are very different from those of the United States. Why are we imposing our uniquely US view on other countries? Shouldn’t other jurisdictions decide who should be excluded from entering based on their own legal and cultural standards, which they are fully capable of doing? Reciprocal international efforts to limit sex trafficking are legitimate, but this Act seems overbroad, probably unconstitutional, arrogant, and paternalistic.
- David Post, The Yellow Star, the Scarlet Letter, and ‘International Megan’s Law’, The Washington Post (Jan. 6, 2016).
- Press Release, Congresswoman Ann Wagner, Wagner Speaks in Support of International Megan’s Law (Feb. 1, 2016).
- Press Release, Florida Action Committee, Lawsuit Filed Against International Megan’s Law (Feb. 9, 2016).
- International Megan’s Law, H.R. 515, 114th Cong. (2016) (summary for H.R. 515).
- Obama Signs Controversial Legislation Designed to Prevent Sex Tourism, NYTLive (Feb. 9, 2016).
- Doe v. Kerry et al., No. 3:16-cv-0065
- Lissa Griffin & Kate Blacker, Megan’s Law and Sarah’s Law: A Comparative Study of Sex Offender Community Notification Schemes in the United States and the United Kingdom, 46 Crim. L. Bull. 987 (2010) (SSRN).4 (N.D. Cal. Feb. 9, 2016
Thursday, February 4, 2016
We are happy to publish this guest post from Associate Professor Quirino Camerlengo, University of Pavia (Italy), Department of Management and Business (PhD in Constitutional Law) who previously served as a Law Clerk in Italy's Constitutional Court.
The Dialogue Among Courts
Dialogue among courts consists of comparing the interpretations of law. The Courts conduct this dialogue through mutual citation. Written constitutions give the interpreter a wide range of possible options as regards the meaning to give to individual rules while keeping the limitations imposed by the original intent of their creators. Elements taken from the jurisprudential experience of other states can be used when interpreting a constitution.
In the context of fundamental rights, the factors determining change in the interpretation differ in consistency from one state to another. Moreover, some states may promote their more far-reaching interpretative evolutions as suitable for other states to imitate. Consequently, comparison with the laws of other states can give courts innovative elements to use in the interpretation of domestic law, beginning with constitutional interpretation.
Successful dialogue depends on the willingness of domestic courts to compare their interpretations with those of other states.
The experience of the United States confirms the consistency of the resistance towards inter-court dialogue (Jackson 2005, p. 109). Reluctance to drawing comparisons is widespread, as summed up by Justice Scalia (in Printz v. United States, 521 U.S. 898, 1997) who said: “we think such comparative analysis inappropriate to the task of interpreting a Constitution, though it was of course quite relevant to the task of writing one”.
I will try to show that:
- a reasonable uniform level of protection for fundamental rights can be reached tank to dialogue among national judiciaries;
- the dialogue among courts is the consequence of the presence of an essential constitutional common core (an ensemble of common fundamental principles belonging to the constitutional systems of western countries);
- the principles belonging to the constitutional common core can be identified by considering the expectations of rights protection on the part of specific actors within the state, in this case, foreign guest workers;
- the rules born of this inter-court dialogue flow into a cosmopolitan constitutional law, according to the Kantian theory of the Weltbürgerrecht.
Western constitutionalism and common constitutional roots
To find a reasonable balance in the levels of safeguard of fundamental rights, particularly among western states, dialogue among foreign courts can develop hand in hand with the awareness that the constitutional system is not the exclusive product of the tradition of a determinate people, but is based on, and continually nourished by, a shared heritage of fundamental principles.
David Beatty wrote: “the basic principles of constitutional law are essentially the same around the world, even though there is considerable variation in what guarantees constitutions contain and in the language that they employ” (Beatty 1995, p. 10).
The sharing of common roots is inherent to the concept of western constitutionalism, it being a current of thought that has extolled the role of the constitution as a defensive bulwark of fundamental rights. The assertion of constitutionalism has gradually brought states closer together, reducing the differences in legal traditions that were previously thought to be insurmountable. Constitutionalism has promoted reciprocal interaction among legal traditions, which has affected the very concept of law.
The dialogue achieved with a reasonable use of comparison can encourage states to look for the most suitable solutions for safeguarding fundamental rights.
Nevertheless, the identification of shared fundamental principles is harder than it looks.
Two obstacles make it difficult to reconstruct the common heritage of fundamental constitutional principles:
- the constitutions tend to change over time, though marginally and very slowly, which throws into question the stability of the common heritage as a factor of cohesion among states;
- the constitutions tend to be self-referring.
To address these obstacles:
- it should be assumed that every constitution is born and develops from a stable and intangible essential core;
- to identify the fundamental principles of the common heritage, a foreign element must be injected into the constitutional systems in order to verify whether these principles are able to guarantee an adequate level of safeguard for fundamental rights. This foreign element makes it possible to make the comparisons required to identify the limits and shortcomings of constitutional systems.
The essential constitutional core
The constitutional system is the organic combination of heterogeneous elements, whose cohesion is intended to interactive achievement of certain aims.
The comparison between systems is a comparison of the key elements that determine the essence of every system.
The basic elements are the core of the system. Each complex entity develops starting from a limited set of constitutive factors which define its main features, essentially as regards identity (structural dimension) and its concrete capacity of affecting existing entities (functional dimension).
The essential core incorporates fundamental constitutional principles that guarantee the stability of the state: their elimination would cause a radical transformation of the state itself.
These principles are the basic principles identified through a consideration of their position in the constitution and in constitutional jurisprudence, without forgetting the historical, cultural, and political traditions of the country itself.
This lowest common denominator is precisely the theorized essential constitutional core.
These principles reflect the fundamental aims of the constitutional system. Constitutions embody “deeper imperatives that continue to shape their struggle for power and legitimacy” (Ackerman 1998, p. 384). These ‘deeper imperatives’, such as the separation of powers or judicial review of legislation, are principles that have not been invented ex novo by a state, but rather are the common heritage of western countries linked to the English tradition.
But how does one identify the characteristics of this essential core?
It should be considered that the constitutional system:
- is formed starting from a small number of constitutive elements expressing its embryonic condition (birth);
- it is a compact body of elements with specific characteristics derived from its genetic matrix (identity);
- it survives thanks to the indissoluble cohesion and stability of its constitutive elements which assure a permanently balanced structure (existence);
- it evolves by following the development trajectories traced by its original elements (development).
Therefore, the essential core is:
α. necessary: the constitution is derived from the core. The other elements aggregate around the core to form the system;
β. substantial: the essential core gives the system its specific identity as a complex of peculiar characteristics which define its original physiognomy. The essential core incorporates the ‘genetic code’ of the system;
γ. indivisible: the elements incorporated in the core cannot be separated;
δ. dynamic: the core guarantees and guides the evolution of the constitutional system.
Every western constitutional system has an essential core incorporating its fundamental principles. It is the interaction of these principles, in turn, that satisfies the characteristics of the essential core: thanks to this interaction, these principles really are fundamental.
Now, the common constitutional heritage of western states must be reconstructed by interrogating the essential ‘cause’ of the various constitutional systems. In other words, the principles incorporated into the common essential constitutional core must be selected.
The identification of the fundamental principles in the common essential core began with article 16 of the Déclaration des Droits de l’Homme et du Citoyen of 1789, considered by many to be the epitome of constitutionalism: “toute société dans laquelle la garantie des droits n’est pas assurée, ni la séparation des pouvoirs déterminée, n’a point de constitution”.
Comparing the constitutional systems of western states and using the abovementioned selection criteria, it can be demonstrated that the common essential core includes the following fundamental principles:
- safeguard of fundamental rights and the rule of law;
- equal protection of the laws;
- separation of powers;
- supremacy of the constitution.
The safeguard of fundamental rights is the typical aim of constitutions. In turn, the safeguard of fundamental rights trusts in the rule of law institutions. Without equal protection of the laws it’s not possible to imagine a fair and strong safeguard of fundamental rights. Every unjustified discrimination is a menace to fundamental rights. The separation of powers is the solution best suited to the protection of fundamental rights. The absence of checks and balances would make it the only power to be absolute arbitrator for the destiny of basic rights (Ackermann 2000). Democracy is the principle best able to guarantee the fundamental rights in a State governed by the rule of law and by the separation of power. In a constitutional system orientated towards freedom, the safeguard of rights presupposes that their limitations are decided in ways that there is a virtual identification between the holders of power and those who are the object of the rules (political representation). Pluralism aids democracy. There can be no democracy without pluralism. In fact, pluralism means the recognition of the many social and political realities of the State. Finally, the supremacy of the constitution is the basic condition that they be guaranteed fundamental rights. Chief Justice Marshall had guessed right when he said that “the constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it” (Marbury v. Madison, 5 U.S. (1 Cr.) 137, 1803).
The “foreign element”
A constitutional system is not ideal if an appreciable level of protection for fundamental rights has not yet been realized. Indeed, a constitutional system is inefficient if it does not draw upon the arrangement of the fundamental principles belonging to the constitutional essential core.
To test the realization of this condition, it is not correct to use the internal standards of a country. In this context, a state is introvert if it does not accept comparison with other states for the purpose of assessing its level of rights-protecting juridical culture.
An introvert state measures its degree of maturation by exclusive use of reference parameters taken from its own history. The ‘introverted’ nature of the United States, despite enjoying the reputation of providing a broad scope for the protection of fundamental rights, sometimes makes it difficult for the comparison among the standards of safeguard reached by other countries.
Dialogue among courts is the antidote to this introverted nature: “the uses of external norms may mark a radical and deliberate departure from parochial practice […] or they may signal little more than a serendipity not soon to be reparted” (Amann 2004, pp. 597-598).
To provide an external standard, a citizen from another state might provide the external means for comparing systems.
The admission of this element is due to the entrance of citizens from other states: individuals with expectations regarding minimum threshold standards regarding the protection of their fundamental rights. Guest citizens abandon their countries in the hope of improving their starting conditions of life. Consequently, states will be more willing to accept new individuals, and, therefore, the level of conflict will decrease.
International networks of legal practitioners or labor activists are a precious source of transmission of knowledge of alternative interpretations. Legal organizations propagandize to prod transformations in legislation and jurisprudence (law-in-progress). The foreign guest worker, on the other hand, starts legal proceedings in which the law is interpreted and applied in concrete cases (law–in-action).
The main challenge for foreign guest workers initiating court action to secure rights protection is to obtain recognition of fundamental rights when the relevant written constitution refers to citizens only. In such a case, the use of the principle of equal protection of the laws could cause the extension of fundamental rights protection to foreign guest workers.
Just think of the decisions of the United States Supreme Court in the context of Guantanamo Bay, in which the fundamental right of habeas corpus (above all the suspension clause) was recognized as applying to foreign prisoners, even if enemy combatants (Rasul v. Bush, 542 U.S. 466, 2004; Hamdan v. Rumsfeld, 542 U.S. 507, 2006; Boumediene v. Bush, 553 U.S. 723, 2008).
After obtaining recognition as a subject having access to a state’s constitutional mechanisms of fundamental rights protection, the foreign guest worker could plan his judicial defense with reference to interpretations of common constitutional principles such as personal freedom, and the freedoms of religion, association, assembly, and thought, that originate in the jurisprudence of her own (rather than the host) country.
In this way, inter-court dialogue can achieve a healthy evolution of mechanisms for rights protection, regardless of the citizenship of the parties.
In considering the position of guest citizens when selecting the principles of the common essential core, the result will be the identification of the principles belonging to the constitutional common core:
- to make tendentiously and reasonably uniform the standards of defence concerning the protection of fundamental rights;
- by placing stress on the individual owner of these rights;
- as a consequence of the comparison between the constitutional cores of different countries.
The arrangement of the principles belonging to the constitutional common core must satisfy the requirements of the essential core mentioned above: necessity, substantialness; indivisibility; dynamism.
Towards a cosmopolitan constitutional law
Dialogue among courts has been often discussed in recent studies of comparative law (L’Heureux-Dubé 1998; Slaughter 2003; Berman 2004; Hirschl 2004; Markesinis and Fedtke 2006).
The basis of dialogue among courts is the core of constitutional principles common to western constitutional systems. So, this dialogue is not a cultural process; rather, it is a legal process based on respect for fundamental constitutional principles.
Western countries share the same fundamental constitutional principles. Constitutional systems aim to protect fundamental rights and constitutional principles provide solutions to questions related to the safeguard of fundamental rights. As these principles can be applied in different ways, the solutions found by a particular national court will not always the best ones. So, the inter-court dialogue helps national courts find the best solution.
The presence of the foreign guest worker provides a useful occasion for the development of inter-court dialogue. He can draw from pertinent arguments to discover a new or better solution deriving from common constitutional law, though the dialogue could develop in spite of the absence of this external element.
The Kantian ius cosmopoliticum is the theoretical frame in which the legal basis of the dialogue among courts can be put (Kant 1795).
Ackerman, B.A. (2000), “The New Separation of Powers,” 113 Harvard Law Review, pp. 633-729.
Amann, D.M. (2004), “‘Raise the Flag and Let it Talk’: On the Use of External Norms in Constitutional Decision Making”, 2 International Journal of Constitutional Law, pp. 597-610.
Beatty, D.M. (1995), Constitutional Law in Theory and in Practice, University of Toronto, Toronto.
Berman, P.S. (2004), “Judges as Cosmopolitan Transnational Actors,” 12 Tulsa Journal of Comparative and International Law, pp. 101-121.
Hirschl, R. (2004), Towards Juristocracy: The Origins and Consequences of New Constitutionalism, Harvard University Press, Cambridge (Mass.).
Jackson, V.C. (2005), “Constitutional Comparisons: Convergence, Resistance, Engagement”, 119 Harvard Law Review, pp. 109-128.
Kant, I. (1795), “Perpetual Peace: A Philosophical Sketch,” in Reiss, H. (ed.). Kant: Political Writings, Cambridge University Press, Cambridge, .
L’Heureux-Dubé, C. (1998), “The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court”, 34 Tulsa Law Journal, pp. 15-40.
Markesinis, B. – Fedtke, J. (2006), Judicial Recourse to Foreign Law: A New Source of Inspiration?, UCL Press, London.
Slaughter, A.-M. (2003), “A Global Community of Courts”, 44 Harvard International Law Journal, pp. 191-219.
Monday, January 18, 2016
In the aftermath of Cologne, Germany's New Year's Eve festivities, close to 500 women have little to cheer about. That is the number of women who have come forward to the police and reported that they were victimized by sexual violence that night. Many women were forced to run a gauntlet through "masses of heavily intoxicated men." Women victimized because the police force that was deployed that night was understaffed and overwhelmed and could not stop the mob violence against women. Incredulously, the police department originally reported that "the night had passed off peaceably."
One would think that reporters would have been all over this story from the start. Yet it took the German public broadcasting channel, ZDF, four days to report on the event. Given that many of the attackers were described as having a "North African background," some politicians on the right have accused the government of trying to suppress the reports in order not to stoke anti-immigrant violence.
While anti-immigrant violence is a definite concern, German attitudes towards rape are a concern as well. In the wake of the mass sexual assaults the city's mayor, is quoted as saying:
There’s always the possibility of keeping a certain distance of more than an arm’s length—that is to say to make sure yourself you don’t look to be too close to people who are not known to you, and to whom you don’t have a trusting relationship.
No the mayor is not a conservative, white male, politician, but a woman-Henriette Reker. Sadly, her views dovetail with many German citizens' indifference to sexual crimes against women in general. Indeed, German commentator Sasha Lobo has gone so far as to write that "the majority of the German public cares so shockingly little about sexual violence -- unless it is committed by "men with a North African or Arab appearance."
While there are close to 500 victims of the Cologne assaults, only one perpetrator is currently in custody on sexual assault charges. Even if more perpetrators are arrested, Germany's current rape laws are not helpful to rape victims. It is not enough for a victim to have said "no." The court must find that the perpetrator used violence, threatened life or limb, or coerced the victim. The structure of the law requires women not just to refuse to consent, but to forcibly resist. A German association of rape crisis organizations and counseling centers, organization, the BFF, "has documented over a hundred cases where attackers escaped sexual assault convictions because of this loophole."
Despite the fact that in 2011, the Council of Europe enacted the Istanbul Convention which states that any "non-consensual" sexual act must be criminalized, Germany has dragged its feet on updating its rape laws.
Unfortunately, the German government has not just left German women unprotected, but female refugees as well. Last August, four social work organizations and women's rights groups, addressed a letter to Minister of Integration and Social Affairs in the state of Hesse. The letter flagged conditions at the refugee reception center in Giessen and stated:
"It is a fact that women and children are unprotected. This situation is opportune to those men who already regard women as their inferior and treat unaccompanied women as “fair game”. As a consequence, there are reports of numerous rapes, sexual assaults and increasingly of forced prostitution. These are not isolated incidents."
If there is a silver lining to this incident it is that Germany may finally update its rape laws. A bill that redefines rape has the support of the Chancellor and is now making its way through the system. Still, simply changing the law will not keep perpetrators at arm's length.
Krishnadev Calamur, "The Fallout from the Reports of Sexual Assault in Cologne," The Atlantic, January 6, 2016.
"Cologne Assaults: Police Report Outlines 'Chaotic and Shameful' New Year's Eve," Spiegel Online, January 7, 2016.
Kate Connelly, "Tensions Rise in Germany Over Handling of Mass Sexual Assaults in Cologne," The Guardian, January 7, 2016.
Ben Knight, "Germany Set to Finally Update its Rape Law," Deutsche Welle, January 8, 2016.
Sascha Lobo, "Mobs and Counter-Mobs: Pitfalls, Prejudice and the Cologne Sexual Assaults," Spiegel Online, January 8, 2016.
Friday, January 15, 2016
After spending an extremely enjoyable part of last week at The Many Faces of Innovation conference, hosted jointly by Bar-Ilan University and Ono Academic College in Israel (http://www.ono.ac.il/37235/), I started to reflect on the question, Is there really is any such thing as “comparative intellectual property law” anymore?
I’ve pondered the question off and on for a while now, but a comment made by Prof. Marty Adelman (Geo. Wash. Univ. Law) at the conference seemed directly on point. In chairing one of the panels, Prof. Adelman observed that a number of us had failed to specify exactly which nation’s IP laws were the focus of our conference papers. His observation was a valid one, as we were an international group, but most of us considered our work to apply to multiple jurisdictions. After all, so much of intellectual property law has been harmonized due to both globalization and international treaties and agreements such as TRIPS and the Berne Convention. Is there – and should there be – any real remaining differences between countries to compare?
The answer is, of course, yes. Most commentators, for example, seem to agree that developing economies need different approaches to IP than do developed countries, the TRIPS agreement notwithstanding. But even among developed countries, variations in government taxation on or support for intellectual property or additions to international minimum protection standards are widespread. This latter point in particular was brought home in a presentation on Israel’s proposed new industrial design law by Asa Kling, Commissioner of Patents at the Israel Patent Office. Protection for industrial designs covers things such as the shape, color, configuration, pattern, or other aesthetic elements of what would otherwise be purely utilitarian articles. In the U.S., industrial designs can be protected under both copyright and design patents, although neither are a seen as particularly satisfactory. Israel’s proposed industrial design law will be a replacement for its current Patents and Designs Ordinance, which dates back to 1924 and is ill-suited to address modern industrial designs such as GUIs, computer icons, and so on. Part of the Israel Patent Office’s intent in drafting the proposed law is also to prepare for accession to the Hague Agreement Concerning the International Deposit of Industrial Designs, which, like many of the international intellectual property agreements, sets some minimum baselines for protection but leaves up to its respective signatories many other details, including duration and formalities.
And not surprisingly, it is in these details that we can see plenty of fodder for comparative analysis. Both the United States and Japan acceded to the Hague Agreement in 2015, for example, but in doing so the U.S. changed its design patent term from fourteen years to fifteen years whereas Japan had already changed its design patent term from fifteen to twenty years back in 2008. The European Union, by contrast, not only grants registered industrial designs protection for twenty-five years but also grants protection to unregistered designs, albeit much more limited in scope and only for three years. In its proposed law, Israel has opted to follow the E.U.’s example, changing Israel’s protection for registered designs from fifteen to twenty-five years and providing three years of protection for unregistered designs.
There are many other significant provisions in the proposed bill as well as differences from other jurisdictions, of course, but the bill is a good example of the diversity still remaining among IP laws. This diversity is undoubtedly a good thing: despite globalization, culture, economics, governmental intervention, and a variety of other factors relevant to IP still vary as well.
Tuesday, December 22, 2015
The editors of the Cambridge Journal of International and Comparative Law (CJICL) welcome submissions for the CJICL 5th Annual Conference to be held at the University of Cambridge on 8-9 April 2016. Accepted papers will be considered for publication in a special issue of the Cambridge Journal of International and Comparative Law. Abstracts should be submitted on the basis that the subsequent paper will be available for publication if selected.
“Public and Private Power”
The theme for the CJICL 5th Annual Conference is “Public and Private Power”. We are interested in doctrinal, theoretical, institutional and comparative perspectives from international, European and comparative law on the regulation of public and private power.
We are interested in exploring how the landscape of public and private power is changing, where new and important networks and partnerships between public and private power are emerging and where public power is co-opting or commissioning private power in larger projects. This interconnectivity can be seen at all levels, challenges traditional divisions between public and private, and raises new problems for regulation.
How is public and private power understood at the international, European and national levels? How should public and private power be allocated between and within the international, European and national levels? What new controls are necessary or desirable for existing or emerging areas of public and private power? What is distinctive about public and private power? How important is the distinction between public and private power? Is the distinction sustainable in different areas of regulation? How is the relationship between public and private power changing?
We are particularly interested in international, comparative and EU perspectives on the following topics:
- the distinctiveness of public or private power;
- the changing structure of the public-private divide;
- the value of distinguishing between public and private power;
- the allocation of public and private power; and
- the control of public and private power.
Applications should be submitted to email@example.com by 10 January 2016. Applications should include a proposed abstract of not more than 300 words and a CV and applicants should expect to hear from the convenors by the end of January.
General registration for the conference will open in February 2015 http://cjicl.org.uk. Numbers are limited and early registration is highly recommended. Attendees are responsible for their own travel expenses and accommodation and should seek funding from their home institution or other bodies. The convenors can arrange a limited amount of accommodation at Emmanuel College at the attendee’s expense. The conference fee will be confirmed in January and there will be a limited number of fee waivers or reductions at the discretion of the convenors in cases of financial hardship. The conference is aimed at both academic and professional attendees and will be CPD accredited
Monday, December 21, 2015
This month we highlight two new Comparative Law Papers on SSRN:
To start, Martin Oyhanarte of the Universidad Austral in Argentina and the Universidad del Salvador has posted an article entitled, "Public Law Litigation in the U.S. and in Argentina: Lessons from a Comparative Study." From the abstract:
"This article provides a comparative study of Public Law Litigation and the use of structural remedies in the United States and in Argentina. The case of Argentina is interesting because it is one of the few countries with strong-form judicial review that has implemented this kind of litigation. The experiences in both countries reveal disparate results. Evidence suggests that sustained impact depends on certain political conditions and technical requirements. The article describes these conditions and requirements, fitting them into a model. The model may prove useful to assess the implementation of complex procedural devices under different legal environments. Further, it suggests possible courses of action to judges, legislators, or legal activists seeking to promote structural reform."
Our second paper is from T.J. McIntyre of the UCD Sutherland School of Law, who has posted a forthcoming book chapter entitled, "Judicial Oversight of Surveillance: The Case of Ireland in Comparative Perspective." From the abstract:
"This chapter examines how judicial oversight can regulate state surveillance, with a particular focus on Irish, European Convention on Human Rights (ECHR) and European Union (EU) law.
It begins by considering the general arguments for judicial oversight and the types of oversight structures which can be used, from ex ante authorisation to ex post review and the variants in between.
It then examines the extent to which Irish, ECHR and EU law require judicial oversight in particular circumstances - particularly in light of the landmark decision of the Court of Justice in Digital Rights Ireland v. Minister for Communications invalidating the Data Retention Directive.
Next, it takes as a case study the Irish experience of data retention and discusses how judicial oversight of data retention has operated and why it has failed to secure the rights of the individual.
It concludes with suggestions for improving the effectiveness of judicial oversight surveillance."
Friday, December 4, 2015
In prior blogs (here and here) we discussed both the trial of Oscar Pistorius, in South Africa, for the death of his girlfriend, and then the verdict, which found Pistorius guilty of culpable homicide, that is, what we in the United States would call manslaughter, but not guilty of murder. We commented, among other things, about the experience of seeing a single judge rendering a verdict (in which two invisible lay assessors joined), and of hearing a detailed statement of reasons – two experiences we rarely (as to the first) or never (as to the second) have in the United States. This week, the Supreme Court of Appeal in South Africa entertained the prosecution’s appeal from that verdict and reversed it. The court convicted Pistorius of murder instead: a third unheard phenomenon in the US criminal justice system.
The appellate court held that the trial court had incorrectly applied the doctrine of dolus eventualis, which supports a murder conviction based, in essence, on recklessness, by concluding that because the defendant did not know who he was shooting at (error in objecto), he could not have understood that death was likely to follow. The court explained that “the accused’s incorrect appreciation as to who was in the cubicle [in which he fired the fatal shots] is not determinative of whether he had the requisite criminal intent.” The court also held that the trial court had incorrectly applied the law on circumstantial evidence by ignoring some of the relevant evidence.
As the Supreme Court of Appeal noted in the opening sentence of its opinion, “[t]his case involves a human tragedy of Shakespearean proportions;…”.
- Lissa Griffin, South Africa: Reflections on the Pistorius Trial, Comparative Law Prof Blog (Apr. 10, 2014).
- Lissa Griffin, The Pistorius Verdict, Comparative Law Prof Blog (Sept. 12, 2014).
- Director of Public Prosecutions, Gauteng v. Pistorius (96/2015)  ZASCA 204 (3 Dec. 2015) (S. Afr.) (Court’s PDF).