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).
Wednesday, November 25, 2015
This conference aims to explore the features and the challenges of the fundamental rights protection system in Europe. The first day of the conference will feature keynote speakers such as Prof. Bruno De Witte, Prof. Morten Kjaerum, Prof. Federico Fabbrini, Prof. Cormac Mac Amhlaigh and Prof. Michael Addo.
The second day of the conference, after the keynote speech of Prof. Matej Avbelj, will be dedicated to the presentation of papers selected through this call.
The Convenors invite submissions from scholars in Comparative Public law, European law, International law at all levels. Submissions may address one or more of the following subjects:
1. Theory of fundamental rights
2. Pluralism within the European system of fundamental rights protection
3. The role of the judiciary in fundamental rights protection
4. The role of international/supranational agencies
5. The challenges of fundamental rights protection after the Eurozone-crisis
6. Social rights protection within the EU
7. Comparisons between the European fundamental rights protection system and other non-European experiences
Interested scholars should email no more than one (1) abstract of max. 500 words by December 10, 2015 to the following address: firstname.lastname@example.org
Successful applicants will be notified no later than December 30, 2015.
There is no cost to participate in the workshop. Successful applicants are responsible for securing their own funding for travel, lodging and other incidental expenses.
Sunday, November 15, 2015
Lena Foljanty, Max Planck Institute for European Legal History, recently posted this interesting article on SSRN.
From the abstract:
Monday, November 2, 2015
ANNUAL CONFERENCE 2016
23-24 MAY 2016
SCHOOL OF LAW AND THE IRISH CENTRE FOR HUMAN RIGHTS,
‘(DIS) LOCATING COMPARATIVE LAW’
The Irish Society of Comparative Law (ISCL) and the School of Law of the NUI Galway together with the Irish Centre for Human Rights are pleased to announce the seventh annual conference of the ISCL to be held in Galway on 23-24 May 2016. The keynote speaker will be Prof Mark Tushnet of Harvard Law School.
Theme: In an increasingly interconnected world, where geographies of protection are premised on the centrality of national territory and state sovereignty, the importance of being cognisant of the concept of location/geography/space/place in the comparative law arena, cannot be underestimated.
Does comparative law continue to contrast the laws of states, or is there now, a new focus? What effect does this have on the diversity inherent in plural legal systems? How are different types of laws (state/customary/indigenous/international) (dis/re)located? How does this (dis)location impact our analysis of these laws, including any effort at being a ‘comparativist’? What does this mean for places of transience not holding enough significance to be regarded as legal places? This conference questions traditional narratives of comparative law, in the context of the increasing complexity of legal orders within, between and beyond states.
The conference aims to encourage theoretical and empirical interdisciplinary reflection on comparative law and space/place, to explore why location matters, and ensure cognisance of the sensitivities of location in comparative law. However, any comparative topic may be proposed, eg private law, criminal law and criminal justice, public or constitutional law, legal education, etc. In addition, proposals on European or International law will also be considered.
The deadline for receipt of proposals is Monday, 29 February 2016. Proposals by both members and non-members, as well as by professional academics and graduate students are welcome.
Proposals should be maximum 500 words in length and be sent to email@example.com. The conference fee will be €60 for members of the ISCL and €120 for non-members (membership fees are €60, student membership is free). The ISCL regrets that it cannot cover travel or accommodation expenses. All additional information about the conference (including a special Conference group rate in local hotels) will be posted in due course at http://www.conference.ie/Conferences/index.asp?Conference=218
Thursday, October 22, 2015
We are promoting the Supreme Court Fellows Program on the Comparative Law Blog this year because the program offers a placement in the Office of the Counselor for the Chief Justice that is particularly appropriate for comparative law scholars as well as current judicial clerks who may wish to pursue a career in the field of comparative law.
Sunday, October 18, 2015
Conference Announcement: May 2nd and 3rd, 2016 (Rome, Italy)
The Center for Parliamentary Studies, LUISS Guido Carli University of Rome in cooperation with The University of Milan, Department of National and Supranational Public Law; The International Society of Public Law (ICON-S); and The Younger Comparativists Committee (YCC), American Society of Comparative Law
Subject-Matter of Symposium
We can trace the institutional evolution of bicameralism from ancient Greece and Rome, to Medieval Europe and the emergence of the House of Lords in fourteenth century, in the intellectual debates triggered by the French Revolution and the design of the United States Constitution, to the reflections in Alexis de Tocqueville’s Souvenirs, through the present day. Bicameralism is today a common feature of constitutional democracy. At its best, bicameralism diversifies democratic representation, strengthens representative government, promotes legislative deliberation, and reinforces the separation of powers. Yet bicameralism has often failed either to fulfil its intended purposes or to keep pace with the evolution of constitutional democracy. Many constitutional states, for instance Canada, Ireland, Romania and the United Kingdom, have sought to revise their bicameral arrangements only to confront significant legal or political barriers to change. Only relatively few reforms have succeeded. This Symposium will inquire why. Drawing from country-specific and cross-national experiences with bicameralism, scholars in this Symposium will bring to bear comparative, doctrinal, historical, legal and theoretical perspectives to the study of constitutional reform of national legislatures.
This Symposium will devote one session to constitutional reform in Italy. Bicameralism in Italy has been a matter of controversy since the drafting of the Constitution in 1946-47. Both chambers in Italy are co-equal in the most important ways: they are directly elected, they exercise the same legislative powers, and they possess the same confidence relationship with the executive branch. Yet bicameralism in Italy has been the object of several failed reform efforts both to overcome the challenges of perfect bicameralism and its degeneration, as well as to guarantee a representation of local and regional authorities as the country moves toward greater regionalization. Italy is currently undertaking a major constitutional reform to its bicameral arrangements.
These and other developments raise important questions for constitutionalism. How should a legislature be structured, and what values—democracy, representation, efficiency, deliberation— should its design prioritize? Does bicameralism still fit the times in light of the globalization and Europeanisation of public policies, the increasing dominance of judicial and executive actors, mounting calls for greater devolution of legislative powers to subnational levels of government and the multiplication of levels of government? When and under what conditions is a bicameral arrangement to be preferred over a unicameral one? How can second chambers best perform their functions.
These questions, in particular with respect to Canada in comparative perspective, were the focus of the master’s dissertation written by Gabriella Angiulli, a dear friend and colleague to whom this Symposium is dedicated. Gabriella Angiulli passed away in March 2013. She was a doctoral student at the University of Siena and a Teaching Assistant at LUISS Guido Carli University, where she earned her master’s degree cum laude in Comparative Public Law in 2008 under the supervision of Prof. Carmela Decaro. The first conference held in her memory in 2014 explored “The preliminary reference to the Court of Justice of the European Union by Constitutional Courts.” This second scholarly program will foster academic debate and collaboration on another important line of inquiry in contemporary constitutional law—on questions that formed the subject of Gabriella Angiulli’s research when she was embarking on her promising academic career.
Structure of Symposium
The first day of the conference, Monday May 2, 2016, will be held entirely in English and will feature three panels each with two presenters. The second day of the conference, Tuesday, May 3, 2016, will be held in partly in English and Italian. There will be one roundtable in Italian focused on the constitutional reform of bicameralism in Italy, and two panels in English each with two presenters.
The Symposium will feature a keynote presentation by Professor John Uhr (Australian National University), one of the leading scholars in the study and design of bicameral legislatures.
Possible Subjects for Paper Proposals
The Convenors invite submissions from scholars in comparative public law at all levels, from doctoral candidates to senior professors. Submissions may address one or more of the following subjects from national, comparative, or European perspectives:
1. Constitutional history of bicameralism
2. Bicameralism in historical perspective
3. Bicameralism in constitution-making
4. Overcoming challenges and stalemate in bicameral and unicameral systems
5. Bicameralism in federal systems and in federalizing processes
6. Bicameralism, ICT revolution and open government
7. Bicameralism, representative democracy and minorities
8. Bicameralism and electoral systems
9. Bicameralism, the separation of powers and forms of governments
10. Bicameralism and lawmaking
11. Bicameralism and parliamentary oversight
12. Bicameralism in the framework of the European Union: intra- and inter-State dynamics
To Submit an Abstract
Interested scholars are invited to submit a CV and an abstract no longer than 500 words by
November 30, 2015 to
firstname.lastname@example.org. Applicants will be notified by December 30, 2015. Full drafts of papers will be due by email to email@example.com no later than April 1, 2016. Papers should be no longer than 10,000 words (footnotes included).
Papers presented at the conference will be published subject to successful blind peer-review. The remaining papers may be considered for publication in the LUISS School of Government Working Paper Series:
There is no cost to participate in the conference. The Convenors will provide meals and accommodations (for up to two nights) to presenters. Presenters are responsible for their own travel and incidental expenses.
For additional information, please contact Cristina Fasone at firstname.lastname@example.org.
Monday, October 12, 2015
The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) is pleased to invite submissions for its second workshop on comparative business and financial law to be held on February 5-6, 2016 at UC Davis School of Law in Davis, California. The purpose of the workshop is to highlight, develop, and promote the scholarship of new and younger comparativists in accounting, banking, bankruptcy, corporations, commercial law, economics, finance, and securities.
Up to fifteen papers will be chosen from those submitted for presentation at the workshop pursuant to this Call for Papers. The workshop audience will include invited young scholars, faculty from UC Davis School of Law and Graduate School of Management, faculty from other institutions, and invited guests.
Submissions will be accepted from scholars who have held a full-time academic appointment for no more than ten years as of June 30, 2016.
To submit an entry, scholars should email an attachment in Microsoft Word or PDF containing an abstract of no more than 1000 words before October 15, 2015, to the following address:
Please title the email "YCC Business Law Workshop – [Name]." Abstracts should reflect original research that will not yet have been published, though may have been accepted for publication, by the time of the workshop. Abstracts should include a cover page with the author’s name, title of the paper, institutional affiliation, contact information, as well as the author’s certification that she/he qualifies as a younger scholar.
Scholars may make only one submission. Both individual and co-authored submissions will be accepted. For co-authored submissions, at least one author must qualify as an eligible younger comparativist.
Invitees will be selected via a blind review by a workshop selection committee. Authors of the submissions selected for the workshop will be notified no later than November 15, 2015. There is no cost to register for the workshop but participants are responsible for securing their own funding for travel, lodging and other incidental expenses. A limited number of travel stipends may be awarded to scholars from ASCL member schools who demonstrate financial need. If you
would like to be considered for a travel stipend, please make that request in your submission.
Final papers for the workshop will be due no later than January 18, 2016.
Acknowledgements and Questions
The YCC gratefully acknowledges the support of UC Davis School of Law and the California International Law Center. Please direct all inquiries to Professor Afra Afsharipour, Chair of the Program Committee, by email at email@example.com or telephone at 530-754-0111.
Please feel free to share this Call for Papers with any colleagues who may be interested.
The Program Committee:
Afra Afsharipour (UC Davis School of Law) (Chair)
Martin Gelter (Fordham University School of Law)
Haider Ala Hamoudi (University of Pittsburgh School of Law)
Virginia Harper Ho (University of Kansas School of Law)
Workshop Selection Committee:
Afra Afsharipour (UC Davis School of Law)
Martin Gelter (Fordham University School of Law)
Haider Ala Hamoudi (University of Pittsburgh School of Law)
Virginia Harper Ho (University of Kansas School of Law)
Andrew Tuch (Washington University School of Law)
YCC Board of Directors:
Afra Afsharipour, Professor of Law, University of California - Davis
Richard Albert, Associate Professor, Boston College, Chair
Virginia Harper Ho, Associate Professor, University of Kansas, Treasurer
Sally Richardson, Associate Professor, Tulane University
Ozan Varol, Associate Professor, Lewis & Clark, Vice Chair & Secretary
Thursday, October 8, 2015
This post was written by Peter Widulski, Assistant Director of the Legal Writing Program and Faculty Coach to the ICC Moot Court Team at Pace Law School, in White Plains, NY
On September 18, 2015, Contempt Judge Nicola Lettieri of the Special Tribunal for Lebanon [STL] issued a judgment finding a Lebanese journalist, Ms. Karma Al Khayat, in contempt on one of the two counts filed against her. This count charged Ms. Al Khayat with violating Rule 60 bis (A) (iii) of the STL’s Rules of Procedure and Evidence, which prohibits “knowingly and wilfully interfer[ing]” with the STL’s “administration of justice” by “disclos[ing] information relating to proceedings in knowing violation of an order of a Judge….”
After a trial conducted from April 16, 2015 to May 15, 2015, Judge Lettieri concluded that the evidence showed beyond a reasonable doubt that Ms. Al Khayat was responsible for producing and broadcasting on Al Jadeed TV, and maintaining on Al Jadeed TV’s website, information that effectively identified several prosecution witnesses in the trial against defendants charged with the terrorist killing of the former Lebanese Premier and others. The judge found that by doing so, Ms. Al Khayat knowingly violated STL orders designed to protect witness confidentiality. In a sentencing judgment announced on September 28, 2015, Judge Lettieri imposed a fine of 10,000 Euros on Ms. Al Khayat.
In her September 18 judgment, Judge Lettieri also had to address Rule 60 bis charges the Prosecutor brought against Al Jadeed as a corporate entity. In this respect, Judge Lettieri found it necessary to make recourse to Lebanese law. Like the International Criminal Tribunal for the Former Yugoslavia [ICTY] and the International Criminal Tribunal for Rwanda [ICTR], the STL was established by the U.N. Security Council. Unlike the ICTY and ICTR, however, the STL is a “hybrid” tribunal in that it applies both international criminal law and domestic (Lebanese) criminal law.
Applying Lebanese law on corporate liability, Judge Lettieri found the evidence produced at trial insufficient to support the Prosecutor’s charges against Al Jadeed.
Monday, September 28, 2015
A recent patent law decision from India once again highlights the uneasy relationship between the pharmaceutical industry and intellectual property rights. In a decision reminiscent of the Indian Supreme Court’s 2013 decision against Novartis on its patent application for its chemotherapeutic drug Gleevec (generic name, imatinib), the Indian patent office rejected Pfizer’s patent application on its rheumatoid arthritis drug, Xeljanz (generic name, tofacitinib). Both decisions cited to Section 3(d) of the India Patent Act of 2005 to find that neither Gleevec now Xeljanz exhibited enhanced efficacy over earlier known forms of each drug.
In Novartis’ case, the Court rejected the patent application because Gleevec is a beta crystalline, methylate salt form of the known base compound, imatinib. Novartis had previously patented the imatinib base form (outside of India) but developed the Gleevec form so that it could be administered to patients orally. The differences between Gleevec and base imatinib were significant enough to gain patent protection in other countries, including the U.S., but Section 3(d) of Indian patent law imposes an additional requirement not seen in other jurisdictions. Specifically, Section 3(d) states that patentable inventions do not include “mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance.” Although Gleevec arguably has enhanced useability over its base imatinib form – which, again, is often enough for patentability in other jurisdictions – Section 3(d) requires evidence of enhanced therapeutic efficacy. Pfizer’s Xeljanz application suffered the same fate this past year.
Pharmaceutical companies are quite understandably up in arms about Section 3(d). Although Section 3(d) is not specific to pharmaceuticals on its face, India’s policy on drug patents quite expressly favors drug affordability over drug patenting. Section 3(d) is thus designed in large part to prevent pharmaceuticals from “evergreening” patent protection of their drugs by sequentially patenting variations on those drugs. This kind of sequential innovation is common in all areas of technology, but it is viewed with particular suspicion when it comes to pharmaceuticals, and understandably so. High pharmaceutical costs lead to tragic choices, even in relatively wealthy nations, and even more tragic lack of access to medicines in countries, such as India, where very few enjoy health insurance.
That being said, the pharmaceutical industry is the one area in which the patent system is thought actually to achieve its purpose of incentivizing investment in R&D. Although commentators disagree greatly on the exact cost to develop and market drugs, the pharmaceutical R&D is clearly an expensive and time-consuming enterprise, if only because of the heavy regulatory burdens of the drug approval process. Patents may raise pharmaceutical prices, but they also may help drug innovators recoup their costs.
India, on the other hand, is known more for its generic drug industry than for its innovative drug industry; not coincidentally, India’s strict policy toward pharmaceutical patenting favors its generic manufacturers. What correlation might exist between strong drug patents and strong pharmaceutical innovation would be interesting to measure by comparing data from various countries.
Saturday, September 26, 2015
Earlier this month news broke that the U.S. Department of Justice had begun investigating the auto manufacturing giant, Volkswagen. Now, VW faces investigations throughout Europe and Asia.
In Germany, prosecutors in Braunschweig have opened a pre-investigation review that seeks to determine whether the State might prosecute individuals at VW on charges including aggravated fraud. This is not the first time that the Braunschweig prosecution office has investigated VW. In 2008, several top executives were charged and convicted of funneling payments to labor leaders to gain support for corporate policies. A court sentenced the company's chief employee representative, Klaus Volkert, to a three year prison sentence. Other allegations against the company at the time were far more scandalous. Investigators discovered that company executives arranged trips for employee representatives that included visits to prostitutes and shopping sprees. At the time, critics blamed VW's problems on the unusually close ties between labor and management at VW.
On the federal level, Germany's Minister of Transportation has also opened an investigation into "improper vehicle tampering" -a violation of both German and European law.
During the earlier scandal at VW, critics blamed the company's problems on the unusually close ties between labor and management at VW. Given that VW has long lauded its commitment to producing environmentally friendly cars, one wonders what kind of incentives engineers received for hiding their inability to meet those standards.
Mark Landler, "Sentence in Volkswagen Scandal," New York Times, February 23, 2008.
"VW May Face Criminal Probe in Germany," Automotive News Europe, September 23, 2015.
Wednesday, September 16, 2015
The London Times reports that members of the Scottish Parliament's Justice committee voted against changing the form of legal aid payments from fixed to hourly rates on criminal appeals.
As a comparativist, I paused for a moment when reading a New York Times editorial, also from today, that indicated that Bad lawyering is behind most death sentences...." While I question the correctness of that assertion, the alleged lawyer deficiency in that case - failure to introduce an impeaching confession from the government's main witness - might well have resulted, as have others, from the very low assigned counsel fees paid in the United States.
Monday, September 14, 2015
Professor Strong, Missouri College of Law, has recently posted an article on SSRN entitled, "Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy."
From the abstract:
Over the last few decades, international commercial arbitration has become the preferred means of resolving cross-border business disputes. The popularity of this particular device is due to a number of uniquely attractive features ranging from the mechanism’s sophisticated blend of common law and civil law procedures to the routine use of reasoned awards. As a result, international commercial arbitration does not resemble domestic arbitration so much as it does complex commercial litigation.
Although international commercial arbitration is considered a highly mature form of dispute resolution, very little information exists as to what constitutes a reasoned award in the international commercial context or how to write such an award. This situation is becoming increasingly problematic given the rising number of international commercial arbitrations that arise every year, the expansion and diversification of the pool of potential arbitrators, and the significant individual and societal costs that can result from badly written awards.
This Article provides the first-ever in-depth analysis of the reasoned award requirement in international commercial arbitration. In so doing, the discussion draws heavily on the large body of material involving reasoned rulings in both common law and civil law courts and considers whether and to what extent those criteria apply in the arbitral context. As a result, this Article not only provides useful information to those seeking to better their understanding of the reasoning requirement in international commercial arbitration, it also provides key comparativeinsights into the judicial process in both common law and civil law legal systems.
Much of the analysis focuses on theoretical concerns relating to reasoned decision-making in judicial and arbitral settings. However, the discussion also incorporates a strong practical element. As a result, this Article is relevant not only to specialists in international commercial arbitration but also to judges involved in enforcing reasoned awards domestically or internationally, scholars studying arbitral and judicial decision-making, and domestic arbitrators seeking to understand the parameters of a reasoned award under national law.
Sunday, September 6, 2015
We are pleased to publish this Guest Editorial by Miguel Calmon Dantas
Doctor in Public Law by Universidade Federal da Bahia and Professor of Constitutional Law
The scenes are still in everyone's memory. The little boy held by police after a failed attempt to find life far from where he was born, because there is no more hope.
Forgive us, little Aylan, because you did not live what could. Because you will not giving all the smiles that could. To have found the dark side of the life so anytime soon.
Many children as Aylan lose their lives every day for a variety of causes: violence, poverty - and with it, hunger and disease - ethnic conflicts, wars and accidents. They had denied access to the most basic right of all, the right to life. Life to them is denied by the violation of other rights, human rights and fundamental rights that they cannot, despite its history, prevail over the most intense violations.
If the twentieth century was the Age of Rights, according to Norberto Bobbio, also experienced unbearable and countless atrocities.
The twenty-first century has witnessed the gradual emergence of a new constitutionalism, global, popular and virtual, turning to claim the effectiveness of human rights and fundamental rights; however, it has been also a century of intolerance and excesses of uncontrolled and ambivalence. A horror century of terrorists and terror of the States. A century of suffering and pain.
The pains of September 11. The pains of Atocha. Suffering from Guantanamo. Suffering from Charlie´s. The suffering that inspired the Arab Spring, the Indignados, Greek workers, all Occupies and even recent demonstrations in Brazil.
The frustration of those who see the persistence of tyrannical governments, the debt collection that oppress millions of national, countries governed not by politics neither by the will of the voters, but by the creditors. The frustration of those who see the increasingly internalized corruption in the res publica management.
All, in a way, feel the pain, frustration and suffering, exacerbated by what happened with the little Aylan, they are prey to despair, conformism and despair. To feel the human and fundamental rights as nothing. The non-human being. The denial of humanity because they are not brought the texts to life, not to be tried and experienced.
Human rights are addressed to all human beings, regardless of particular aspects such as nationality, ethnicity, gender, age. Only the single condition that they all have a single identity: the condition of being human. And out of all the violence that can be committed against a human being, that lead people to flee their homeland, to be outsiders and those who deny or hinder the entry of these refugees are the most serious because it undermines citizenship and solidarity. The right to have rights, in the precious definition of Hannah Arendt, and the right to have the community uphold rights of others, share responsibilities, and feel as the other.
Aylan and his family had the application for admission to Canada as refugees denied. The country closed its border not only for a family. Closed to human rights. Do not close to tourists and to lex mercatoria. There were no Syrians wanting to get in a developed country to explore their wealth or find a place in the sun. There were human beings desperately looking for a place to live. Closing for Aylan and family, leaving them delivered at random, Canada denied the human dimension of human rights. Only after the tragedy, the Canadian government began to investigate what happened so that there was the refusal of the request, granting it to the father, who did not accept more.
For these rights, which crave the dignity and turn to citizenship, founded on solidarity, reached the degree of recognition, many gave their lives. Giving your life, they ensured that the rights could save the life of the same as theirs. Aylan will be next to those who gave their lives for human rights.
At this point, the consolidation of human rights in the global legal civilization, should not be necessary more people lose their life for the rights to express their senses and their needs to be taken seriously. While all the time, not being touched by rights, people are losing their lives. It is clear, then, how uncivilized, in fact, it is our civilization.
So we should all apologize to the little Aylan. That even without being aware, guided by his father's hope, moved everyone, everyone impacted by global media. Seen as another, not as unique as a pair, such as a human. Must have his name in the pantheon of human rights.
To paraphrase of the article 377 of the 1795´s French Constitution, Aylan, seeking life by paths taken by his father, he´s going to be with those who courageously guard and defend human and fundamental rights.
Forgive us, Aylan. Human rights not saved your life. It is that you may have saved human rights, at least as to its universality and indivisibility, calling humanity to the full meaning of human life.
Sunday, August 30, 2015
This semester I am working with eight students who are completing a research project for the U.S. State Department as part of the State Department's Diplomacy Lab project. The effort is part of a new program in which faculty and students develop ideas and solutions to policy issues identified by the federal agency.
This semester my students are studying public defender systems in four areas of the world: Asia, Sub-Saharan Africa, South America, and Europe. They will examine the different models for public defense in each area of the world and compile a report that they will present to the State Department.
The great part about the project is that the students get to participate in teleconferences with State Department officials and receive real world feedback on their work. I will report back on this project later, but it is a rare opportunity for my law students to do applied work in comparative law.
Wednesday, August 26, 2015
As the summer draws to a close, let's take a deep breath before swinging into the next semester, for a look at the lighter side of jury service - US v. UK-style:
Best wishes to all for a rewarding Fall semester.