Thursday, January 5, 2017
Now running on the Courts Law section of JOTWELL is my essay, Comparative Avoidance. I review Erin Delaney’s recent article, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016).
Monday, February 23, 2015
Bill Dodge has posted on SSRN a draft of his article, International Comity in American Law, which will be published in the Columbia Law Review. Here’s the abstract:
International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity — from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government’s privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and an analytic framework for thinking about its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge two widespread myths — that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch. I show that international comity doctrines are frequently expressed as rules rather than standards, and that courts are usually in a better position to apply them than the executive branch.
Saturday, July 26, 2014
My colleague Siegfried Wiessner, Professor of Law and the Director of St. Thomas' Graduate Program in Intercultural Human Rights, has posted on SSRN his article Democratizing International Arbitration? Mass Claims Proceedings in Abaclat v. Argentina. This is a fascinating account of the decision of the International Center for the Settlement of Investment Disputes to allow some 60,000 individual Italian bondholders to proceed against Argentina for its default on those bonds – the first mass claim presented before an ICSID tribunal. In support of the ICSID's decision, Professor Wiessner surveys US class action practice, the European Union's collective redress mechanisms (including representative collective actions, group actions, and test cases), and International Mass Claims Commissions.
Sunday, September 22, 2013
On Monday, September 23, 2013, the International Court of Justice (ICJ) will celebrate the Centenary of the Peace Palace with a conference that will consider the following four topics:
1. A Century of International Justice and Prospects for the Future;
2. The International Court of Justice and the International Legal System;
3. The Role of the International Court of Justice for Enhancing the Rule of Law; and
4. The International Court of Justice and the United Nations: Relationship of the ICJ with other UN Organs.
A detailed conference agenda can be found here: http://www.icj-cij.org/presscom/files/4/17524.pdf.
And, information about how to view the conference either by live streaming or on-demand can be found here: http://www.icj-cij.org/presscom/files/4/17534.pdf.
Wednesday, February 13, 2013
Theodore Eisenberg, Talia Fisher, and Issachar Rosen-Zvi have posted on SSRN their paper, When Courts Determine Fees in a System with a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants.
Unlike the English rule governing court fees and costs, under which the loser pays litigation costs, and the American rule, under which each party pays its own costs, Israel vests in judges full discretion to assess fees and costs. Given concerns about both the English and American rules, and the absence of empirical information about how either functions, an empirical study of judicial fee award practices should be of general interest. We report evidence that Israeli judges apply multiple de facto fee systems: a nearly one way fee-shifting system that dominates in tort cases, a loser pays system that operates when publicly owned corporations litigate, and a loser pays system with discretion to deny fees in other cases. Although a loser pays norm dominates in Israel, with fees awarded in 80% of cases, Israeli judges often exercised their discretion to protect losing litigants, especially individuals, by denying fees. For individual plaintiffs and defendants, the denial rate exceeded 30% for defendants who prevailed against individuals and was about one-quarter for plaintiffs who prevailed against individuals. Judges protected individual plaintiffs against fee awards more than corporations. In cases lost by individual plaintiffs, fees were denied to successful defendants 29.9% of the time compared to denials in 18.0% of cases lost by corporate plaintiffs and 16.7% of cases lost by governmental plaintiffs. In cases lost by individual defendants, fees were denied to successful plaintiffs 22.7% of the time compared to 9.8% denials in cases lost by corporate defendants and 28.6% denials in cases lost by government defendants. In addition to varying by whether plaintiffs or defendants prevailed and by party status, the fee denial pattern varied by case category and judicial district. Theorizing about optimal fee rules should account for the variety of fee outcomes observed in practice.
Thursday, February 16, 2012
U.C. Irvine School of Law is hosting a conference entitled Human Rights Litigation in State Courts and Under State Law on Friday, March 2, 2012.
The panels look great:
9:00 a.m.-10:30 a.m. Panel 1
Human Rights Litigation in State Courts and Under State Law: The Experience So Far
- Michael Goldhaber
- Paul Hoffman
- Austen Parrish
- Moderator: Michael Robinson-Dorn
10:30 a.m.-10:45 a.m. Break
10:45 a.m.-12:15 p.m. Panel 2
Federalism and Foreign Relations Issues Raised by Human Rights Litigation in State Courts and Under State Law
- David Kaye
- Chimène Keitner
- Julian Ku
- Ed Swaine
- Moderator: Michael Ramsey
12:15 p.m.-1:30 p.m. Lunch
1:30 p.m.-3:00 p.m. Panel 3
Conflict of Laws and Doctrinal Issues in Human Rights Litigation in State Courts and Under State Law
- Patrick Borchers
- Anthony Colangelo
- Symeon Symeonides
- Moderator: Trey Childress
3:00 p.m.-3:15 p.m. Break
3:15 p.m.-4:45 p.m. Panel 4
The Future of Human Rights Litigation in State Courts and Under State Law
- Roger Alford
- Lee Crawford-Boyd
- Kristin Myles
- Beth Stephens
- Moderator: Chris Whytock
Tuesday, September 14, 2010
Professor Diane Marie Amann has posted "Portraits of Women at Nuremberg" on SSRN. It will be published in the American Society of International Law Journal.
The abstract states:
Tuesday, August 17, 2010
Alan Scott Rau has posted Understanding (and Misunderstanding) "Primary Jurisdiction" to SSRN.
In our “Westphalian” regime of international arbitration, conflict and competition between national jurisdictions, with overlapping and yet plausible claims to supervise the process, become inevitable. The conventional starting point for any discussion - the fulcrum around which the entire arbitral enterprise pivots - has been the supposed dichotomy between the state of the “seat” - where the arbitration finds its juridical “home,” and whose jurisdiction over the process is therefore “primary” - and all other states whose jurisdiction must therefore be deemed only “secondary.” Both legislation and Convention envisage an exclusive role for the former in setting the process in motion - for example, by appointing the arbitrators - and above all in monitoring compliance with the agreement - for example, by annulling or vacating the resulting award.
That the “seat” is the privileged starting point with respect to any allocation of judicial authority has traditionally been a simple reflection of the power of any sovereign over acts taking place within its “territory”; an alternative and perhaps more robust explanation would be somewhat more “contractualist,” giving priority to the parties’ exercise of autonomy in the very act of selecting the place of arbitration - and to the intuition that, by extension, they have presumptively chosen to subject themselves both to a certain body of “arbitration law,” and to the supervisory jurisdiction of the courts charged with applying that law.
I begin by canvassing the various fact patterns in which the traditional allocation of international competence on the basis of “primary” and “secondary” jurisdiction might possibly be thought useful: It has become, for example, the heuristic of choice to test the extraterritorial effect of an award, in circumstances where the agreement of the parties has subjected the arbitral process to a particular legal system whose own courts have found it lacking in legitimacy. All this is much controverted, but generally well understood.
The inevitable problem, though, is that none of this is a universal solvent - the world can after all be understood and patterned and divided up in all sorts of ways. What may have begun as a rough attempt to allocate responsibility over the unfolding of the process, has often been unthinkingly applied to all sorts of new and unexpected and inappropriate contexts.
Where, for example, a party has asked a court to enjoin an arbitration against him that has been threatened or initiated - perhaps on the fundamental ground that he has never even given his assent - American courts will increasingly hold that, whatever power they might have to enjoin a “local” arbitration, it would be “inconsistent with the purpose of the New York Convention” to enjoin arbitral proceedings in a state of “secondary jurisdiction” - and thus they “lack jurisdiction” to do so. Where a party has claimed that a foreign award has been obtained by bribery and corruption, and wishes to institute a “collateral attack” in this country through a RICO action, it may equally be held that the court lacks “subject matter jurisdiction” to reassess an award rendered in a state of “primary jurisdiction”; “under the framework of the New York Convention, the proper method of obtaining this relief is by moving to set aside or modify the award in a court of primary jurisdiction.”
American courts thus seem curiously mesmerized, when asked to deploy familiar procedural devices in aid of their nationals, by a rhetoric invented for quite different purposes. What purports in cases like these to be a commendable solicitude for the needs of international arbitration, takes the form of an abdication of any decision making power whatever, in favor of the courts of the seat. To invoke a putative lack of “power” based upon absolute prohibitions that supposedly emanate from the Convention seems a crude and clumsy and overbroad and irresponsible way of responding; even a legal system quite committed, for example, to the proposition that attempts to evade the arbitral process are likely to be quite without merit - or for that matter to the proposition that international neutrals cannot possibly be corrupt - need not shrink, on the prophylactic grounds of lack of jurisdiction, from testing any challenges.
Wednesday, August 4, 2010
Andreas Grimmel (Minda de Gunzburg Center for European Studies (CES); Harvard University; University of Hamburg) has posted "Judicial Interpretation or Judicial Activism?: The Legacy of Rationalism in the Studies of the European Court of Justice" on SSRN.
The abstract states:
Thursday, June 24, 2010
Wednesday, May 26, 2010
Professor Michael Bohlander (Durham Law School) has posted "Pride & Prejudice or Sense and Sensibility? A Pragmatic Proposal for the Recruitment of Judges at the ICC and Other International Criminal Courts" on SSRN. It is published in the New Criminal Law Review.
The abstract states:
Wednesday, May 5, 2010
Professor Fabien Gelinas (McGill University) has posted "Judicial Independence in Canada: A Critical Overview" on SSRN. It will be published in "Judicial Independence in Transition -- Strengthening the Rule of Law in the OSCE Region," Anja Seibert-Fohr, ed. (Max Planck Institute Series, "Beitraege zum Auslaendischen Oeffentlichen Recht und Voelkerrecht, Heidelberg: Springer, 2010).
The abstract states:
Wednesday, April 28, 2010
Anna Gines i Fabrellas and Ignacio Marin Garcia have posted Who Pays the Legal Fees in the Spanish Justice System? A Comparative Analysis of Civil and Labour Jurisdictions to SSRN.
This paper compares the legal fees rules in the first instance civil and labour courts in Spain. Governed by substantially different legal fees rules, the paper analyses their effects on the litigation level and the probability of settlement in order to depict an institutional design which favours settlement and avoids excessive litigation.
Thursday, March 18, 2010
On Sunday, Egypt's Constitutional Court issued an opinion opening the door for the appointment of women judges in Egypt by reversing a previous decision by the General Assembly of State Council to exclude women from the judiciary. The General Assembly had voted by an overwhelming majority in February to prohibit women from being given judicial appointments. The Constitutional Court's decision came as a result of a "request for clarification" by Egyptian Prime Minister Ahmed Nazif. The Constitutional Court voted that the general assembly did not have the power to decide the issue and that the decision about whether to appoint women judges is within the administrative committee's jurisdiction.
The administrative committee will take up the question next week. If the administrative committee decides to approve women judicial candidates, then women would be eligible for judicial appointment by presidential decree following approval of the candidate by the administrative committee.
The Jordan Times reports about the Egyptian Constitutional Court's decision here.
Thursday, January 28, 2010
Elizabeth R. Sheyn has posted "A Foothold for Real Democracy in Eastern Europe: How Instituting Jury Trials in Ukraine Can Bring About Meaningful Governmental and Juridical Reforms and Can Help Spread These Reforms Across Eastern Europe" on SSRN. The article is forthcoming in the Vanderbilt Journal of Transnational Law.
Saturday, January 23, 2010
Christina E. Parau (University of Oxford Centre for Socio-Legal Studies) has posted "Beyond Judicial Independence? What Kind of Judiciary is Emerging in Post-Communist Eastern Europe?" on SSRN.
Wednesday, January 13, 2010
While those of us in the U.S. have been wringing our hands over the procedural reforms that both the Rules drafters and the Supreme Court have handed us over the past few years, our neighbors to the north have been busy crafting some new rules of their own. These rules came into effect on January 1, 2010.
Three of these reforms are particularly interesting because they address perceived problems that have motivated reform here as well: lengthy and expensive discovery and role of the summary judgment procedure.
At summary judgment, a judge may now “weigh evidence, evaluate credibility, and draw inferences from the evidence (Rule 20.04(2.1)) and can order oral evidence [mini-trial] with or without time limits (Rule 20.04(2.2).
On the discovery end, the rule addressing the general scope of discovery has changed from “relating to any matter in issue” to “relevant to any matter in issue,” (Rule 30.02(1)) thus narrowing the world of discoverable material.
The most interesting discovery reform is that Ontario has introduced a "proportionality" requirement in discovery, which I am reproducing in full:
(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;
(b) the expense associated with answering the question or producing the document would be unjustified;
(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
(e) the information or the document is readily available to the party requesting it from another source.
Monday, December 21, 2009
Arthur Dyevre (CEPC) has posted "European Integration and National Courts--A Strategic Analysis of Judicial Behaviour" on SSRN in the Working Paper Series.
Saturday, December 12, 2009
This past October, Britain's new Supreme Court kicked off its first term. In the past, the UK's highest court was a group of "law lords" who were actually part of Parliament. However, beginning on October 1, 2009, under the Constitutional Reform Act of 2005, the court was removed from Parliament and a new, independent Supreme Court was created.
Wednesday, December 2, 2009
A Chinese court is hearing the first civil case seeking damages for injuries suffered in connection with the China milk scandal. The case, brought by a parent whose child became ill after consuming baby formula which contained the industrial chemical melamine, is seeking $8000 from a dairy group and a supermarket. The government has already ordered the payment of $161 million to the hundreds of thousands of families whose children became ill or died as a result of consuming the tainted milk. However, some of the families argue that this compensation is inadequate. The Chinese court rejected an effort by the families to sue together as a group, and so far, six cases have been accepted by the courts.