Thursday, August 29, 2019
Rosalind Dixon and Vicki Jackson have published Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, 57 Colum. J. Transnat’l L. 283 (2019). Here’s the abstract:
Foreign judges play an important role in deciding constitutional cases in the appellate courts of a range of countries. Comparative constitutional scholars, however, have to date paid limited attention to the phenomenon of “hybrid” constitutional courts staffed by a mix of local and foreign judges. This Article addresses this gap in comparative constitutional scholarship by providing a general framework for understanding the potential advantages and disadvantages of hybrid models of constitutional justice, as well as the factors likely to inform the trade-off between these competing factors. Building on prior work by the authors on “outsider” models of constitutional interpretation, it suggests that the hybrid constitutional model’s attractiveness may depend on answers to the following questions: Why are foreign judges appointed to constitutional courts—for what historical and functional reasons? What degree of local democratic support exists for their appointment? Who are the foreign judges, where are they from, what are their backgrounds, and what personal characteristics of wisdom and prudence do they possess? By what means are they appointed and paid, and how are their terms in office structured? How do the foreign judges approach their adjudicatory role? When do foreign judges exercise their role? Exploration of these questions is informed by interviews of judges who have served on three jurisdictions’ appellate courts that include foreign judges. Ultimately, the Article suggests that the value of having foreign judges on a national court may well depend on their partial “domestication”—through some meaningful degree of domestic support for the role of such judges and through the foreign judges’ own approach to constitutional appellate decision-making, such that they occupy a truly hybrid position between that of constitutional “outsider” and “insider.”
Monday, August 19, 2019
Jiangfeng Li has published Climate Change Litigation: A Promising Pathway to Climate Justice in China?, 37 Va. Env. L.J. 132 (2019). Here’s the conclusion:
Climate change litigation has yet to take root in China. However, as this article argues, China can develop climate change litigation to effectively address the serious problem of climate change. Tackling climate change requires a multidimensional governance regime that includes both top-down regulation from government agencies and bottom-up regulation from public participation in judicial or non-judicial activity.
Litigation can be a driving force for an effective response to climate change through the process of the courts applying and interpreting statutes, prods and pleas, and the flow-on regulatory effects of the litigation process. While exploring the regulatory role climate change litigation can play, this article has offered a theoretical prognosis of potential pathways for the emergence of climate change litigation in China. It also discussed the economic, social, historical, and cultural factors currently impeding the development of climate change litigation in China. However, considering China’s domestic concerns about the risks and impacts of climate change and China’s evolving legal framework and social sentiments regarding climate change and environmental litigation, climate change litigation has an opportunity to develop in China.
In light of these factors, this article proposes that China should enact a pro-litigation climate change statute, extend government enforcement litigation to climate change, and enhance public participation and education with respect to climate change regulation. Though there is still considerable uncertainty regarding the future prospects of climate change litigation in China, this article holds an optimistic view that China will gradually become receptive to climate change litigation.
Friday, August 9, 2019
Stefan Bechtold, Jens Frankenreiter & Daniel Klerman have published Forum Selling Abroad, 92 S. Cal. L. Rev. 487 (2019). Here’s the abstract:
Judges decide cases. Do they also try to influence which cases they decide? Plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum selling.” This Article shows that forum selling occurs outside the United States as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the United States, German courts attract cases primarily through the pro-plaintiff manipulation of procedure, including the routine issuance of ex parte injunctions in press cases and refusal to stay patent infringement proceedings when the patent’s validity is challenged in another forum. A critical difference between forum selling in Germany and the United States is that court administrators are more actively involved in Germany. As state officials, German court administrators have the incentive to consider the effect of caseloads on government revenue and the local economy, and they use their power to allocate judges to particular kinds of cases in order to make their courts attractive. They also use their power over promotion, case allocation, and resources to reward judges who succeed in attracting cases. Based on an extensive set of interviews with attorneys, judges, and court officials, this Article describes evidence of forum selling in German patent, press, and antitrust law. It also analyzes how German courts compete internationally with courts of other countries.
Wednesday, July 17, 2019
This month the Hague Conference on Private International Law adopted the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.
The text is here.
(H/T: Stacie Strong)
Friday, May 17, 2019
Jie (Jeanne) Huang has published Personal Jurisdiction Based on the Location of a Server: Chinese Territorialism in the Internet Era?, 36 Wis. Int’l L.J. 87 (2018). Here’s the abstract:
Whether a court can exercise personal jurisdiction based on the location of a server in internet tort cases is a controversial issue. Its significance comes from the paradox that the internet is de-localized because it is ubiquitous, but servers are indispensable to the internet and every server has a geographic location. Since 2001, Chinese law has allowed courts to exercise personal jurisdiction solely based on the location of a server or other computing equipment in intellectual property infringement cases. Recently, it has extended this jurisdiction rule to all internet torts. This paper asks whether the location of a server should be considered the place where the tort occurs and whether this territorial-based jurisdiction rule can suffice its public-law legislative goal. It may enrich current research about technology-mediated legal challenges to private international law in two aspects. Firstly, it conducts a broad international survey by looking into laws in China, the U.S., Australia and the EU. It also analyzes where the tort occurs when servers are owned by an infringer, a third party or an infringee in domain name registration, service outsourcing, platform, cloud computing, commercial spams, etc. It concludes that in legal theory, the location of the server is not the place where an internet tort occurs. Secondly, by analyzing China’s experience, it argues that, in the internet era, states have to look for private-international-law tools to advance their public policy claims. However, the practice shows that the territorial-based jurisdiction rule is limited in fulfilling its pubic-law legislative goal.
Friday, April 26, 2019
Ronald Brand has published Recognition of Foreign Judgments in China: The Liu Case and the “Belt and Road” Initiative, 37 J.L. & Com. 29 (2018). Here’s the abstract:
In June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.
Tuesday, February 5, 2019
Conference and Call for Papers: Comparative Law and International Dispute Resolution Processes (University of Missouri, October 17-19, 2019)
The American Society of Comparative Law’s 2019 Annual Meeting will take place at the University of Missouri from October 17-19, 2019:
The American Society of Comparative Law’s 2019 annual program seeks to delve more deeply into how comparative law operates formally and informally, visibly and invisibly, publicly and privately, in cases involving cross-border dispute resolution. The program includes two plenary sessions that are intended to provide an overview of comparative law in international dispute resolution as well as recommendations and forecasts for the future of the field.
More details are available here.
If you wish either to propose concurrent panels or to submit abstracts for the works-in-progress conference that will take place in conjunction with the annual meeting, the deadline is May 20.
Tuesday, June 26, 2018
Yesterday’s Supreme Court order list included grants of certiorari in several cases, including these three:
Sudan v. Harrison presents the question:
Whether the Second Circuit erred by holding — in direct conflict with the D.C., Fifth, and Seventh Circuits and in the face of an amicus brief from the United States — that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.
Nutraceutical Corp. v. Lambert presents the question:
Federal Rule of Civil Procedure 23(f) establishes a fourteen-day deadline to file a petition for permission to appeal an order granting or denying class-action certification. On numerous occasions, this Court left undecided whether mandatory claim-processing rules, like Rule 23(f), are subject to equitable exceptions, because the issue was not raised below. See, e.g., Hamer v. Neighborhood Hous. Serv. of Chicago, 138 S. Ct. 13, 18 n.3, 22 (2017). That obstacle is not present here. The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline? As the Ninth Circuit acknowledged below, its decision conflicts with other United States Circuit Courts of Appeals that have considered this issue (the Second, Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits).
The question presented is: did the Ninth Circuit err by holding that equitable exceptions apply to mandatory claim-processing rules and excusing a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline?
And Henry Schein, Inc. v. Archer and White Sales, Inc. presents the question:
Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”
June 26, 2018 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, International/Comparative Law, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)
Thursday, June 14, 2018
SCOTUS decision in Animal Science: Deference to a foreign government’s statement about its own domestic law
Today the Supreme Court issued a unanimous decision in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (covered earlier here). Justice Ginsburg’s opinion for the Court begins:
When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally “no,” ruling that federal courts are “bound to defer” to a foreign government’s construction of its own law, whenever that construction is “reasonable.” In re Vitamin C Antitrust Litigation, 837 F. 3d 175, 189 (2016).
We hold otherwise. A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements. Instead, Federal Rule of Civil Procedure 44.1 instructs that, in determining foreign law, “the court may consider any relevant material or source . . . whether or not submitted by a party.” As “[t]he court’s determination must be treated as a ruling on a question of law,” Fed. Rule Civ. Proc. 44.1, the court “may engage in its own research and consider any relevant material thus found,” Advisory Committee’s 1966 Note on Fed. Rule Civ. Proc. 44.1, 28 U. S. C. App., p. 892 (hereinafter Advisory Committee’s Note). Because the Second Circuit ordered dismissal of this case on the ground that the foreign government’s statements could not be gainsaid, we vacate that court’s judgment and remand the case for further consideration.
[In the interest of full disclosure, I joined an amicus brief in this case on behalf of law professors in support of neither party. The brief urged the Supreme Court not to endorse the Second Circuit’s doctrine of abstention based on international comity. It didn’t.]
Thursday, June 7, 2018
S.I. Strong has published General Principles of Procedural Law and Procedural Jus Cogens, 122 Penn. St. L. Rev. 347 (2018). Here’s the abstract:
General principles of law have long been central to the practice and scholarship of both public and private international law. However, the vast majority of commentary focuses on substantive rather than procedural concerns. This Article reverses that trend through a unique and innovative analysis that provides judges, practitioners, and academics from around the world with a new perspective on international procedural law.
The Article begins by considering how general principles of procedural law (international due process) are developed under both contemporary and classic models and evaluates the propriety of relying on materials generated from international arbitration when seeking to identify the nature, scope, and content of general principles of procedural law. The analysis adopts both a forward-looking, jurisprudential perspective as well as a backward-looking, content-based one and compares sources and standards generated by international arbitration to those derived from other fields, including transnational litigation, international human rights, and the rule of law.
The Article then tackles the novel question of whether general principles of procedural law can be used to develop a procedural form of jus cogens (peremptory norms). Although commentators have hinted at the possible existence of a procedural aspect of jus cogens, no one has yet focused on that precise issue. However, recent events, including those at the International Court of Justice and in various domestic settings, have demonstrated the vital importance of this inquiry.
The Article concludes by considering future developments in international procedural law and identifying the various ways that both international and domestic courts can rely on and apply the principles discussed herein. In so doing, this analysis provides significant practical and theoretical assistance to judges, academics, and practitioners in the United States and abroad and offers groundbreaking insights into the nature of international procedural rights.
Monday, May 21, 2018
Now on the Courts Law section of JOTWELL is my essay, Human Rights Litigation and the States. I review a recent article by Seth Davis and Chris Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018).
Friday, May 4, 2018
From the announcement:
In this annual lecture series, up to three scholars from Yale Law School and other leading US-Law Schools are invited to spend some time in Berlin, at Humboldt Law School. During their stay, and as part of a variety of different events, the three visitors will interact with colleagues as well as doctoral candidates and students. The highlight of these series of events is the Yale-Humboldt Consumer Law Lecture, which is open to all interested lawyers. The presentations will be followed by a discussion.
The Yale-Humboldt Consumer Law Lecture aims at encouraging the exchange between American and European lawyers in the field of Consumer Law, understood as an interdisciplinary field that affects many branches of law. Special emphasis will therefore be put on aspects and questions which have as yet received little or no attention in the European discourse.
For this year’s event, we are privileged to welcome Professor Robert C. Post (Yale Law School), Professor Judith Resnik (Yale Law School) and Professor Reva Siegel (Yale Law School) as speakers.
Register here by June 1.
Tuesday, April 24, 2018
Today the Supreme Court issued its decision in Jesner v. Arab Bank, PLC, which addresses whether corporations may be liable in actions brought under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. It’s a fractured decision, as evidenced by the following notation at the end of the syllabus:
KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B–1, and II–C, in which ROBERTS, C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined, and an opinion with respect to Parts II–A, II–B–2, II–B–3, and III, in which ROBERTS, C. J., and THOMAS, J., joined. THOMAS, J., filed a concurring opinion. ALITO, J., and GORSUCH, J., filed opinions concurring in part and concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.
There are 85 pages worth of opinions, but the very brief takeaway (from Part II-B-1 of Justice Kennedy’s opinion, slip op. at 19) is that “absent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations.”
And from Part II-C, slip op. at 27: “Accordingly, the Court holds that foreign corporations may not be defendants in suits brought under the ATS.”
Justice Sotomayor’s dissenting opinion argues that foreign corporations should not be categorically immune from liability under the ATS.
Friday, March 23, 2018
Chrystin Ondersma has published Consumer Financial Protection and Human Rights, 50 Cornell Int’l L.J. 543 (2017). Here’s the abstract:
This summer the Consumer Financial Protection Bureau proposed a rule that would restrict the use of mandatory arbitration clauses in consumer financial credit contracts. With the administration and Congress seemingly eager to pull back on consumer financial regulations, it is crucial to examine the rights at stake. Many financial institutions have agreed to protect and promote human rights, so pressure from consumers, human rights organizations, and consumer protection advocates may succeed even though Congress has declined to promulgate the CFPB’s proposed rule. This Article argues that the existing binding, mandatory arbitration system in consumer credit contracts is inconsistent with human rights principles, including property rights, rights to be free from discrimination, and due process rights. This Article then evaluates the CFPB’s rule from a human rights standpoint, and explores the CFPB’s role in mitigating human rights concerns triggered by arbitration clauses in consumer credit contracts.
Tuesday, May 2, 2017
Yesterday the Supreme Court issued a unanimous decision in Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., covered earlier here. The case involves the expropriation exception to the Foreign Sovereign Immunities Act (FSIA), which provides that foreign states are not immune from jurisdiction in U.S. courts when, among other things, “rights in property taken in violation of international law are in issue.”
Justice Breyer’s opinion concludes that it is not sufficient to “make a ‘nonfrivolous’ argument that the case falls within the scope of the exception.”
Rather, state and federal courts can maintain jurisdiction to hear the merits of a case only if they find that the property in which the party claims to hold rights was indeed “property taken in violation of international law.” Put differently, the relevant factual allegations must make out a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). A good argument to that effect is not sufficient. But a court normally need not resolve, as a jurisdictional matter, disputes about whether a party actually held rights in that property; those questions remain for the merits phase of the litigation.
Moreover, where jurisdictional questions turn upon further factual development, the trial judge may take evidence and resolve relevant factual disputes. But, consistent with foreign sovereign immunity’s basic objective, namely, to free a foreign sovereign from suit, the court should normally resolve those factual disputes and reach a decision about immunity as near to the outset of the case as is reasonably possible. See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493–494 (1983).
Part III of the opinion contrasts the FSIA with 28 U.S.C. § 1331, finding that Bell v. Hood’s approach to the existence of a federal question does not apply to the FSIA’s expropriation exception.
Justice Gorsuch took no part in the consideration or decision of the case.
Monday, April 3, 2017
This case presents the question this Court granted certiorari to resolve, but ultimately left undecided, in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013): Whether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
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).
Friday, December 2, 2016
In 1965, the member states of the Hague Conference on Private International Law, including the United States, adopted a treaty known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”). The Hague Service Convention enables service of process from one member state to another without the use of consular or diplomatic channels. This case presents the following federal question on which state and federal courts have been divided for over 25 years:
Does the Hague Service Convention authorize service of process by mail?
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Thursday, October 27, 2016
Erin Delaney has posted on SSRN her article, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016). Here’s the abstract:
Courts sometimes avoid deciding contentious issues. One prominent justification for this practice is that, by employing avoidance strategically, a court can postpone reaching decisions that might threaten its institutional viability. Avoidance creates delay, which can allow for productive dialogue with and among the political branches. That dialogue, in turn, may result in the democratic resolution of — or the evolution of popular societal consensus around — a contested question, relieving the court of its duty. Many scholars and judges assume that, by creating and deferring to this dialogue, a court can safeguard its institutional legitimacy and security.
Accepting this assumption arguendo, this Article seeks to evaluate avoidance as it relates to dialogue. It identifies two key factors in the avoidance decision that might affect dialogue with the political branches: first, the timing of avoidance (i.e., when in the life cycle of a case does a high court choose to avoid); and, second, a court’s candor about the decision (i.e., to what degree does a court openly acknowledge its choice to avoid). The Article draws on a series of avoidance strategies from apex courts around the world to tease out the relationships among timing, candor, and dialogue. As the first study to analyze avoidance from a comparative perspective, the Article generates a new framework for assessing avoidance by highlighting the impact of timing on the quality of dialogue, the possible unintended consequences of candor, and the critical trade-offs between avoidance and power.
Tuesday, October 4, 2016
Last week Congress voted to override President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA). Although there’s apparently been some “buyer’s remorse” by members of Congress who voted to override the veto, JASTA’s provisions narrowing sovereign immunity are now in effect.
Among other things, JASTA adds a new provision to Title 28 of the U.S. Code: 28 U.S.C. § 1605B. Subsection (b) of the new provision states:
(b) RESPONSIBILITY OF FOREIGN STATES.—A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by—
(1) an act of international terrorism in the United States; and
(2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.
Subsection (d) provides: “A foreign state shall not be subject to the jurisdiction of the courts of the United States under subsection (b) on the basis of an omission or a tortious act or acts that constitute mere negligence.’’