Sunday, August 14, 2016
Suja Thomas, University of Illinois College of Law, has recently published a compelling book that explores not only the decline of the jury system in the United States but also contains a chapter that takes a look at the role of juries worldwide. From the description:
Tuesday, August 2, 2016
Nicola Lupo and Cristina Fasone ( LUISS Guido Carli University, Rome) have recently published a timely edited collection entitled PARLIAMENTARY COOPERATION IN THE COMPOSITE EUROPEAN CONSTITUTION. From the marketing flyer:
This collection analyses the place and the functioning of interparliamentary cooperation in the EU composite constitutional order, taking into account both the European and the national dimensions. The chapters join the recent scholarship on the role of parliaments in the EU after the Treaty of Lisbon. The aim of this volume is to highlight the constitutional significance of interparliamentary cooperation as a permanent feature of EU democracy and as a new parliamentary function as well as to investigate the practical side of this relatively new phenomenon. To this end the contributors are academics and parliamentary officials from all over Europe.
The volume discusses the developments in interparliamentary cooperation and its implications for the organization and procedures of national parliaments and the European Parliament, for the fragmented executive of the EU, and for the democratic legitimacy of the overall EU composite Constitution. These issues are examined by looking at the European legislative process, the European Semester and the Treaty revisions. Moreover, the contributions take into account the effects of interparliamentary cooperation on the internal structure of parliaments and analyze the different models of interparliamentary cooperation, ie from COSAC to the new Interparliamentary Conference on Stability, Economic Coordination and Governance in the European Union provided by the Fiscal Compact.
Nicola Lupo is Professor of Public Law at LUISS Guido Carli University, Rome.
Cristina Fasone is Assistant Professor of Comparative Public Law at LUISS Guido Carli University, Rome.
May 2016 | 9781782256977 | 384pp | Hardback | RSP: £60
Discount Price: £48
Friday, July 29, 2016
As part of a government review of the state of civil justice in England, a proposal has been made - and has been approved by the Law Society (the organization governing solicitors) - for a new online resolution system for civil cases.
Tuesday, July 26, 2016
The Seventh International Legal Ethics Conference took place July 14-16 at Fordham Law School’s Stein Center for Law and Ethics. The conference is supported by the International Association of Legal Ethics and was sponsored, in addition, by a variety of law firms and law schools, including our own law school. We were proud to sponsor this provocative and informative conference.
One of the panels at the conference was devoted to current ethical issues in criminal advocacy from an international and comparative perspective. Panelists addressed a variety of fascinating issues arising in Germany, Israel, the United Kingdom, Chile, Australia and the United States. I was pleased to be the moderator of the panel. A summary of the presentations follows:
CURRENT ISSUES IN DEFENSE ETHICS
Anat Horovitz, Hebrew University, Israel
Re-trials are the procedure prescribed under Israeli law through which a person who claims to have been wrongfully convicted can try to reverse his conviction. From a legal perspective, the chances of success in an application for re-trial are extremely limited. Since 1948, the Supreme Court has granted a re-trial in only 28 cases, which resulted in the exoneration of 21 convicts. Thus, one of the important challenges that the Public Defender’s Office has focused upon in recent years is the need to bring about change within Israeli society and its legal system in respect to recognition and treatment of wrongful convictions.
Under the Israeli Public Defender Law, the National Public Defender can file a request for re-trial on behalf of a convict, if he or she “determined that there is room to file a request for re-trial on his behalf”. Over the past few years, the Re-trial Department in the Israeli Public Defender’s Office has received between 30-40 applications a year, and following a long and tedious process, filed on average one request a year.
In my presentation, I intend to focus on the extent to which the Public Defender’s Office may take into account its institutional role and aspirations when deciding upon the cases it chooses to pursue and the manner in which these cases should be presented. Examples for dilemmas that can arise in each of these two stages include 1) whether or not to file a request on behalf of inmates who raise only partial claims of innocence, and 2) to what extent a Public Defender’s Office should attempt to prove another person’s guilt as a means to secure its client’s innocence. Had it been a legal clinic, in the first example, or a private attorney, in the second example, I doubt if these issues would have been regarded as problematic, but in the context of a Public Defender’s Office it is unclear how they ought to be approached and to what extent strategic and ideological considerations should impact the way these applications and cases are handled.
Stephanie Roberts, University of Westminster, UK
My presentation looks at the role of defence lawyers in wrongful convictions in England and Wales. I am currently doing an empirical study on our Court of Appeal and I will be using a sample from that where the grounds of appeal have been lawyer errors to see which ones will result in the conviction being overturned. We have had a large number of cases here where asylum seekers have been wrongly convicted of criminal offences such as arriving with a false passport because their lawyer has not explained to them that there is a statutory defence available and they have pled guilty to the charge. The Court of Appeal has now dealt with a number of these and quashed the conviction so I can link the discussion of defence lawyer ethics. In the limited time for presentations, I will go through the empirical findings of what errors result in an overturned conviction.
CURRENT ISSUES IN PROSECUTION ETHICS
Shawn Marie Boyne, IU McKinney School of Law, US
For decades, German prosecutors were bound by the principle of mandatory prosecution that mandated that they prosecute any case in which sufficient evidence exists to suspect that a crime has occurred. Beginning in the 1970s however, changes in the legislative code and changes in prosecutorial practice began to erode the force of that principle. As a result, in the vast majority of “minor” crime, cases are settled with a fine, a deferred sentence, or a dismissal. At first glance, this practice appears to be consistent with American plea bargaining. However, in contrast to American practice, the crimes that fall into the “minor” crimes category include crimes that are considered to be felonies in the United States, notably rape and corruption. Though those classification decisions are made by the German legislature, they are compounded by the organizational incentives in German prosecution offices that favor efficiency over painstaking investigation and prosecution. These factors, plus the German system’s comparatively lenient sentencing practices, play a large role in explaining why German prosecutions have not fueled an American-style incarceration explosion. In domestic violence and rape cases, these factors prevent German prosecutors from using the criminal justice system to reinforce the goal of gender equality. Indeed, German prosecutors’ turn towards efficiency has undermined what Damaska labelled as the role of the activist state in the criminal justice process.
Because lay jurors in Germany seldom affect a case’s judicial outcome, there are three main “checks” on prosecutorial decision-making. To begin, victims may appeal a prosecutor’s dismissal decision to the General Public Prosecutors Office. Also, assuming that a sex crimes case makes it to trial, German law allows victims to be represented by a private prosecutor (Nebenklager) who functions like a party in the American system. Finally, if a prosecutor’s work product falls below standards or if a prosecutor breaks the law, the prosecutor may face administrative sanctions.
In this presentation, I argue that taken together, these checks on prosecutorial discretion do not adequately protect victims of sex crimes and domestic violence. As I point out the deficiencies of these systems of control, I will address the question: Why aren’t prosecutors more assertive in prosecuting these types of cases? Is it simply a matter of resources or is it attributable to larger issues in German society?
Marny Requa, Georgian Court University, US
This talk focuses on decisions to pursue criminal cases against police officers and members of the military in Chile for torture and mistreatment. The Chilean criminal justice system has undergone significant reform since 2000. Incidents that arose before the reforms are still dealt with under the old system, generally with magistrates investigating and making prosecutorial decisions after private parties have initiated a case. In the past 15 years, magistrates have been more willing to prosecute these cases. Recent incidents are most commonly prosecuted by a new, independent public prosecutor’s office (Ministerio Público), although a vast number of these are not pursued. Decision-making in both types of cases raises political as well as ethical considerations that have changed over time, a point emphasized in empirical research conducted as part of an ongoing research project titled Lawyers, Conflict and Transition, funded by the UK Economic and Social Research Council. The talk will cover key points from that research impacting on prosecutorial decisions as well as formal and informal forms of accountability.
Lawrence Hellman, Oklahoma City University School of Law, US
Prosecutorial misconduct is now understood to be widespread in the American criminal justice system. Official misconduct was a factor in half of the 1800+ known wrongful convictions in the United States that have been corrected by post-conviction remedies since 1989. However, existing accountability systems provide insufficient deterrents to misconduct by prosecutors, and they do little to motivate and enable prosecutors to deter official misconduct on the part of other state actors involved in prosecutions.
I propose consideration of a new approach to prosecutorial accountability that draws on the successful transition to a proactive management-based regulatory system that has been adopted in Australia for incorporated legal services providers. I will describe how a proactive management-based model of prosecutor accountability might function and suggest how it might be implemented without necessarily applying it to the entire American legal profession. The proactive model would supplement, not replace, the current reactive system. It would be designed to reduce not only the misconduct of prosecutors themselves, but also misconduct of other state actors, such a police, investigators, and laboratory scientists. By reducing official misconduct in the criminal advocacy process, wrongful convictions should become less common and meritorious prosecutions should reach more reasonable outcomes.
Kellie Toole, University of Adelaide, Australia
In Australia, a prosecutor must be satisfied of a ‘reasonable prospect of conviction’ before prosecuting a person for a serious crime. The assessment of the reasonable prospects often involves a relatively objective assessment of available evidence. However, ethical issues arise where witness credibility is critical, as with sex offences, and jury decisions can be unpredictable or even undesirable. Prosecutors have to decide whether to proceed where they assess that a jury might convict but should not, or might not convict but should. This situation raises issues about the prosecutorial role of the community (through the jury) and the State (through the prosecutor), and the fine line between prosecutors properly exercising their discretion, and improperly usurping the decision-making role of the jury.
Sunday, July 10, 2016
Last week, the German parliament finally took a key step towards reforming Germany's backward rape laws. Given that German constitutional law privileges human dignity, it is incomprehensible that, until last week German law required women to fight back against their rapists if they hoped that the state would prosecute their attacker for rape. But then again Germany has long lagged behind the United States and Western Europe when it comes to defining what acts constitute rape. It was not until 1997 that spousal rape became a crime. Before the changes made last week, sexual assault was only classified as rape if the sex was forced by violence, specific threats, or if the perpetrator exploited the victim's vulnerability of the victim. Until now, unwanted sex did not qualify as a rape even if the victim asked the perpetrator to stop. No was not enough. On top of that, behaviors such as "groping, grabbing a person's breasts, crotch or behind" were not even considered to be a punishable crime.
Under the new law, "any person who ignores the 'obvious will' of a victim can face up to five years in prison. Moreover, a spoken "no" finally means "no." In addition, acts such as aggressive groping now qualify as criminal offenses.
Although the new law no longer insists that women physically resist unwanted sex, the change in the law by itself is not enough to protect victims of sexual assault and to punish perpetrators. The state's lenient sexual assault laws have created a culture that discourages victims from coming forward. In fact only one in ten rapes is currently reported. Of that 10%, judges hand down convictions only 10% of the time. This suggests that the attitudes of police, prosecutors, and judges must change if Germany is to make any headway in prosecuting rapists.
Unfortunately, the incident that appears to have motivated the change in the law is not a case of a German man raping a German women. Instead, it involves the widespread attacks on women that occurred in Cologne on New Year's Eve that were allegedly committed by Muslim immigrants and refugees. Despite the widespread reports of assaults committed on that evening, to date, prosecutors have convicted only two men of sexual assault stemming from those attacks. Both of the defendants came to Germany from the Middle East. In line with the level of the crime under German law at the time, a court only imposed a suspended one-year sentence on both defendants.
Naomi Conrad, "Paradigm Shift on Sexual Offenses: No Means No," Deutsche Welle, July 7, 2016.
Friedl Taub, "Germany Redefines Rape: A Survey of International Laws," Deutsche Welle, July 7, 2016.
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: firstname.lastname@example.org. 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: email@example.com.
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.