Friday, February 18, 2011

Childress on the Erie Doctrine and International Law

Professor Donald Earl Childress III (Pepperdine) has posted on SSRN a draft of his article When Erie Goes International, which will be published in the Northwestern University Law Review. Here's the abstract:

This Article challenges the widely held belief that the Erie doctrine automatically applies in private international law cases – namely, cases where a United States federal court is asked by private litigants to apply foreign, non-United States law. Under the conventional understanding, the Erie doctrine not only requires federal courts to apply the law of the state in which the court sits but also to apply that state’s conflict-of-laws rules, even when those rules direct the court to apply the law of a foreign country. This Article argues that courts should question the mechanistic application of a doctrine announced in the 1930s (and updated to conflict of laws in the 1940s and 1970s) to the realities of private international litigation today, especially in light of more recent Supreme Court cases concerning constitutional constraints on choice of law. Among other findings, the Article provides empirical evidence uncovering a previously unrecognized connection in the scholarly literature: internationalizing the Erie doctrine may in part explain the increased use of the forum non conveniens doctrine by federal district courts. The Article also reframes the ongoing and contested scholarly debate between Professors Curtis Bradley, Jack Goldsmith, Harold Koh, and others regarding the application of Erie to customary international law in light of Erie’s application in private international law cases. The Article not only provides a new empirical and scholarly lens through which to view the international application of the Erie doctrine but also offers a suggested approach to be employed by courts when faced with such cases.


February 18, 2011 in Federal Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Thursday, October 28, 2010

Halberstam and Reimann on Federalism (comparative)

Daniel Halberstam and Mathias Reimann (University of Michigan) have posted Federalism and Legal Unification: A Comparative Empirical Investigation of 20 Legal Systems to SSRN.

How and to what degree do federations produce uniform law within their system? Our comparative empirical study addresses this question comprehensively for the first time by examining legal unification in twenty federal systems around the world. We present the means and methods of legal unification, the degree of legal unification of each system (and of particular areas of the law within each system), and a first attempt to explain the driving forces of legal unity and diversity in federations more generally.


October 28, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Monday, October 18, 2010

Knutsen on Deterence of Litigation in Canada

Erik S. Knutsen (Queens University Faculty of Law) has posted The Cost of Costs: The Unfortunate Deterence of Everyday Litigation in Canada to SSRN.

Costs today play a disproportionate role in many civil litigation decisions in Canada because of the inherent unpredictability built into the current overly complex costs system. Canada’s civil litigation system utilizes a fee shifting regime whereby an unsuccessful litigant must pay a proportion of the successful litigant’s legal fees. This costs system is designed to regulate litigation behaviour by deterring unmeritorious cases, by indemnifying successful litigants, by fostering efficient lawyer behaviour, by promoting settlement of disputes, and by ensuring access to the civil litigation system so that the cost of litigating is not out of reach for litigants. In today’s economy, however, the system is trying to do too much, and with too much at stake. The original system was put in place at a time when litigation costs were very often in reasonable proportion to the amount in dispute. Presently, the cost to litigate can quickly eclipse the value of what is at stake in the dispute. A summary judgment motion, for example, may cost upwards of the cost of a family vehicle for the average Canadian. In the minds of litigants and lawyers, unpredictable issues of legal costs often replace issues of substance at the heart of a litigated dispute. While the cost of civil litigation to an individual litigant has certainly increased over time, the increase is not due solely to the cost a litigant pays his or her own lawyer. An increase in the overall cost of litigation thus means an additional increase in costs the loser in a case must pay to the successful litigant, as well as to the loser’s own lawyer. If the loser is an average, middle-income earning Canadian litigating a standard contract or injury dispute, such a loss can be economically impossible to bear. Litigation costs through fee shifting have thus become a fundamental driving force in the Canadian civil litigation.

Courts in Canada exercise wide discretion in assessing costs through fee shifting and costs awards have become unpredictable as a result. This has led to an inability of litigants to ex ante predict their exposure to adverse cost awards. Risk averse litigants, especially those middle income Canadians with some financial exposure such as a house to lose, tend to shy away from the civil litigation system. This is how concern for costs can often eclipse the substantive rights being asserted in a particular case. Everyday litigants who are non-corporate individuals whose litigation costs are not covered by insurance cannot easily defray the financial burden of an adverse cost award. They are most likely to have cost concerns weigh heavily in the decision to advance a claim at all. However, should costs be driving litigation results? Should costs be driving access to the civil litigation system, particularly for the everyday litigants in Canada who have a house or modest savings to potentially lose?

Part I of this Article details how Canada’s fee shifting costs regime operates in a fashion to create a complex and unpredictable litigation dynamic. The Article explains the myriad of variables informing how legal costs are calculated in Canada and how lawyers, clients, and courts have difficulty in estimating financial exposure to such costs. In addition to the fee shifting system, the amount a litigant must pay her own lawyer plus Canada’s pre-trial settlement cost incentives also play large roles in how costs affect litigation decision-making in Canada. Part II of the Article attempts to define the everyday Canadian litigant who is most negatively affected by the current costs system because of an inability to internalize a negative costs award. The everyday litigant is in the most precarious position of potential litigants because costs drive a myriad of access to justice concerns for that group. Part III critically evaluates the costs landscape in Canada and concludes that costs, not the substantive legal claims of the litigants, are disproportionately driving the civil litigation system in Canada for everyday Canadian litigants. In short, costs have subsumed the substance of much Canadian litigation. This leads to not only over-deterrence of litigation in the name of settlement but to concerns about the ability of average Canadians to access the civil justice system for. Part IV evaluates possible fee regime models with an eye to informing modifications to Canada’s fee system. It recommends that Canada’s fee regime be reformed to allow for a hybrid, two-track approach. As a default, courts should adopt a one-sided pro-plaintiff fee shifting system as long as the defendant in litigation is able to somehow defray adverse cost awards through assets or insurance. If both plaintiff and defendant are litigants who cannot reasonably defray the cost of costs, a more American-style costs system of no fee shifting should govern. Settlement incentives should not be based on actual costs to litigate but instead should be a 10% uplift on final damages awarded at trial or settled. Part V concludes.


October 18, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Monday, September 27, 2010

Langer on The Political Branches Regulating Role in Prosecuting International Crimes

Professor Maximo Langer (UCLA School of Law) has posted "The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes" on SSRN. It will be published in the American Journal of International Law.

The abstract states:

Defenders of universal jurisdiction claim that it is a crucial tool to bring justice to victims, to deter State or quasi-state officials from committing international crimes, and to establish a minimum international rule of law by substantially closing the “impunity gap” regarding international crimes. Critics of the regime argue that universal jurisdiction disrupts international relations, provokes judicial chaos, and interferes with political solutions to mass atrocities. One of the issues missing in this debate is the role of the political branches, specifically the executive and the legislature. By identifying the main incentives for political branches in universal jurisdiction cases and explaining the relationship among these incentives, this article articulates a theoretical framework that (1) accounts for the current state of universal jurisdiction, (2) predicts how universal jurisdiction is likely to evolve in the future, and (3) provides what should be a starting point for any non-ideal-world normative assessment of universal jurisdiction as well as for the institutional design of the universal jurisdiction regime.

This article shows two ways in which political branches of individual States have acted consistently with the incentive structure this article identifies. First, relying on the results of a first-of-its-kind survey carried out for this project that aims at covering all universal jurisdiction cases brought since Eichmann, this article will show that universal jurisdiction defendants who have gone to trial are primarily Nazis, former Yugoslavs, and Rwandans. In other words, they are the type of defendants that the international community has most clearly agreed should be prosecuted and punished and that their own States of nationality have not defended - actors that make more likely that the political benefits of universal jurisdiction trials outweigh the costs. Those who fall outside these three categories have been nationals of States that have not exercised their leverage to defend their nationals abroad, or that have been too weak to stop trials from occurring. Second, relying on statutes, judicial decisions, and other materials in their original language, this article will show how these incentives explain State behavior through analysis of case-studies from five States - Germany, England, France, Belgium, and Spain.

This article also explores some of the more significant normative and institutional design implications of its theoretical framework and empirical findings. Key among these is the fact that universal jurisdiction will never establish a minimum international rule of law - that is, it will never substantially close the “impunity gap” regarding international crimes - given that high-cost, most mid-cost, and many low-cost defendants are beyond the reach of the universal jurisdiction enforcement regime. This article’s findings also suggest that a number of common criticisms of universal jurisdiction are unfounded, given that States have incentives to concentrate on defendants against whom there is broad agreement in the international community and whose own States of nationality are not willing to defend. For these reasons, universal jurisdiction is unlikely to lead to unmanageable international tensions, to judicial chaos, or to interference with political solutions to mass atrocities.


September 27, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 14, 2010

Amann on Women at Nuremberg

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:

This essay reflects ongoing research that investigates women who played roles in war crimes trials at Nuremberg, Germany, and situates those women within the context of social developments during the post-World War II era. Based on an autumn 2009 presentation at the Third International Humanitarian Law Dialogs, the essay builds upon the “Women at Nuremberg” series posted at IntLawGrrls blog. The essay mentions women who were defendants, journalists, or witnesses; however, it focuses on some of the women, mostly Americans, who served as prosecutors at Nuremberg.


September 14, 2010 in International Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 9, 2010

Erie, International Law and Guantanamo: Judge Kavanaugh's Opinion in Al-Bihani v. Obama

Last week the D.C. Circuit refused to grant en banc rehearing of its decision in Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010). The denial of rehearing (available here) was accompanied by several statements by individual D.C. Circuit judges, including one from Judge Kavanaugh that opines on the relationship between Erie and international law. From Judge Kavanaugh’s statement (some citations omitted): 

[I]n light of the Supreme Court’s 1938 decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), which established that there is no federal general common law, international-law norms are not enforceable in federal courts unless the political branches have incorporated the norms into domestic U.S. law. None of the international-law norms cited by Al-Bihani has been so incorporated into domestic U.S. law.

To be sure, there was a time when U.S. courts stated that customary international law was “part of our law” so that “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators.” The Paquete Habana, 175 U.S. 677, 700 (1900). But that oft-quoted statement reflected the notion, common in the early years of the Nation but now discredited, that international law was part of the general common law that federal courts could apply.

But as decided by the Supreme Court in its landmark Erie decision in 1938, the view that federal courts may ascertain and enforce international-law norms as part of the general common law is fundamentally inconsistent with a proper understanding of the role of the Federal Judiciary in our constitutional system. In Erie, the Supreme Court famously held that there is no general common law enforceable by federal courts. Erie, 304 U.S. at 78. The Court said that “law in the sense in which courts speak of it today does not exist without some definite authority behind it.” Id. at 79 (quotation omitted). Erie means that, in our constitutional system of separated powers, federal courts may not enforce law that lacks a domestic sovereign source.

Judge Kavanaugh also writes that Erie overturned the so-called Charming Betsy canon, under which federal courts should construe ambiguous U.S. statutes to be consistent with international law: “[I]n the post-Erie era, the canon does not permit courts to alter their interpretation of federal statutes based on international-law norms that have not been incorporated into domestic U.S. law. Indeed, since Erie was decided, the Supreme Court has applied that canon only to support the presumption that a federal statute does not apply extraterritorially.”


(Hat Tip: Jonathan Hafetz)

September 9, 2010 in International/Comparative Law, Recent Decisions | Permalink | Comments (0)

Wednesday, September 1, 2010

Handrlica on Exclusive Jurisdiction and Forum Shopping in the EU

Jakub Handrlica (Charles University in Prague - School of Law) has posted Exclusive Jurisdiction vs. Forum Shopping in European Nuclear Liability Law to SSRN.

Obviously, two rather contradictory principles regarding the jurisdiction are currently in force in the European Union. On one hand, the international nuclear liability conventions clearly follow the provisions of liability channelling and concentrate all proceedings to one court. On other hand, the Brussels I. Regulation obviously prefers to make the plaintiff possible to choose between submitting its claims by the court in the country where incident occurred and by the court in his home country. This paper aims to identify interfaces between these two contradictory principles with special attention to the possibility to enforce the judgments issued by courts of non-convention states (i.e. Austria, Ireland, Luxembourg) in those member countries, which are contracting parties either to the Paris or to the Vienna Convention.


September 1, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Wednesday, August 25, 2010

Skinner on International Law Violations and "Arising Under" Jurisdiction

Professor Gwynne Skinner (Willamette University College of Law) has posted "When Customary International Law Violations 'Arise Under the Laws of the United States'" on SSRN.  It will be published in the Brooklyn Journal of International Law.

The abstract states:

For years, scholars have been vigorously debating the precise role of customary international law within our federal legal system, including whether such is federal common law and whether claims for violation of customary international law arise under the “Laws of the United States” for purposes of both Article III and general federal questions jurisdiction, found at 28 U.S.C. § 1331. This question also remains unresolved by the U.S. Supreme Court. Yet, it is a question that is timely, given the increasing number of non-citizens and citizens alike that bring claims for violations of customary international law in U.S. court. 

In this Article, I conclude that common law claims for violations of customary international law arise under the “laws of the United States” for general federal question jurisdiction and within Article III, but only where such claims or defenses to them implicate uniquely federal interests, such as foreign relations. I do not take this position because the law of nations itself is, or historically was, part of the “laws of the United States” for Article III and 1331 purposes; in fact, the law of nations probably was not considered to be the “law of the United States” per se when each was enacted. Rather, I take this position for two other reasons. First, certain enclaves of federal common law have developed over time to include certain norms and rules of customary international law – i.e., those that affect uniquely federal interests such as foreign relations – and federal courts have the judicial authority to continue to develop such law when uniquely national interests are at stake. Second, federal common law has evolved to become “law of the United States” for purposes of both Article III and 28 U.S.C. §1331.


August 25, 2010 in International/Comparative Law, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 18, 2010

Huang on Interregional Recognition & Enforcement of Civil & Commercial Judgments in China

Professor Jie Huang (Duke University School of Law; Shanghai Institute of Foreign Trade School of Law) has posted "Interregional Recognition and Enforcement of Civil and Commercial Judgments: Lessons for China from US and EU Laws" on SSRN.  It will be published in the Journal of Private International Law.

The abstract states:

Judgment recognition and enforcement (JRE) between US sister states, between EU member states, and between Mainland China, Hong Kong, and Macao, are in the category of “interregional JRE.” This article focuses on what lessons China may draw from the US and the EU to develop its interregional JRE laws. It first discusses the status quo of the interregional JRE in China. Then it explores how the interregional economic integration demands the establishment of a multilateral interregional JRE arrangement in China. Finally it points out the four most crucial challenges in developing this arrangement: the challenge relating to the socialist characters of Mainland law, conflicts between civil and common laws, weak mutual trust, and the lack of a court of final review for cases from all the three regions. It proposes solutions to each challenge by comparative studies with the US and the EU interregional JRE laws.


August 18, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 17, 2010

Rau on Primary Jurisdiction

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.


August 17, 2010 in International Courts, International/Comparative Law | Permalink | Comments (0)

Saturday, August 14, 2010

Kalajdzic on the Globalization of Class Actions in Canada

Professor Jasminka Kalajdzic (University of Windsor Faculty of Law) has posted "The Globalization of Class Actions: Canada" on SSRN. 

The abstract states:

As part of an international group of scholars who came together in December 2007 to discuss and debate the use of class actions worldwide, the authors prepared a report on the role of class proceedings in Canada. The original report followed a format designed by the conference organizers and traced the procedural particularities and historical pedigree of class actions in Canada, as well as the general policy rationales and arguments that continue to attend them. Condensed versions of the country reports, including this Canadian report, were published in March 2009.


August 14, 2010 in Class Actions, International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 9, 2010

Dahdal & Gillies on In Rem Actions in Australia

Professors Andrew Dahdal (Macquarie University, Macquarie Law School) and Peter S. Gillies (Macquarie University, Macquarie Law School) have posted "Characterising the Action in Rem in Australia and the Implications on International Commercial Arbitration" on SSRN.  It will be published in the Journal of Maritime Law and Commerce.

The abstract states:

The law of admiralty evokes, as Sir Ninian Stephan noted, a romantic sense of the high seas and of that which is exotic, but in the modern international economy, it is integral to facilitating maritime commerce and trade. In Australia, such law is grounded in legislation, in particular the Admiralty Act 1988 (Cth). A consequence of grounding admiralty law in legislation, according to some commentators, ‘has been the creation of an entirely novel form of action known as the statutory action in rem.' In Comandate Marine Corp v. Pan Australia Shipping Pty Ltd, the full bench of the Federal Court of Australia addressed the important and interesting question of whether a party initiating such an action may be deemed to have waived a contractual right to arbitrate. This article analyzes the court’s decision in light of the International Arbitration Act 1974 (Cth), the UNCITRAL model law, and the common law.


August 9, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 2, 2010

Three New Comparative Articles

Wednesday, July 21, 2010

Philipsen & Faure on Fees for Personal Injury Claim Settlement in the Netherlands

Professor Niels J. Philipsen (Maastricht University Faculty of Law, Metro) and Professor Michael G. Faure (University of Maastricht Faculty of Law, Metro; Erasmus University Rotterdam School of Law) have posted "Fees for Claim Settlement in the Field of Personal Injury: Empirical Evidence from the Netherlands" on SSRN.  It will be published in the Journal of European Tort Law.

The abstract states:

On data supplied by five Dutch insurers for the years 2001-2006, the authors analyse the development of hourly fees charged by attorneys and other legal representatives (claims agents) in personal injury cases. The analysis focuses on cases that did not go to court but where, according to Dutch law, a fee shifting rule applies: that is, the (insurer of the) losing party must pay the costs of the winner's legal assistance. One may expect that such a fee shifting rule would to some extent restrict competition in the market. The data indeed appear to suggest that in the Netherlands fees of personal injury lawyers have increased rather dramatically in recent years: more than double price and wage inflation, and much more than the fees of, for example, a trustee in bankruptcy. We offer some explanations for this based on the well-known law and economics literature. Although the fee increase we found may indeed be related to the Dutch fee shifting rule, the data we collected (which all relate to recent years) did not allow us to make a sufficiently robust connection between the two. They do, however, provide a rare and valuable insight into modern personal injuries practice in the Netherlands.


July 21, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, June 24, 2010

Varghese on Comparative Evaluation of Judicial Appointment Processes

Professor John Varghese (Government Law College, Kozhikode) has posted "Judicial Appointments--The Domain Game" on SSRN.  

The abstract states:

The judicial appointments and the say of higher judiciary in finding the suitable candidates for filling up vacancies in higher judiciary has till recently been considered as a normal administrative process. But with the judiciary in India starting to demand a say in the judicial appointments on the premise of upholding independence of judiciary, a fierce debate on who should control the process has erupted. This paper examines the comparative position in various countries on judicial appointments and tries to find out the principles evolved through experience of various countries in the process of judicial appointments.


June 24, 2010 in International Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, June 17, 2010

Jayasurya on Judicial Accountability and Transparency in India

Gautam Jayasurya (Rajiv Gandhi National University of Law) has posted "Judicial Accountability and Judicial Transparency: Challenges to Indian Judiciary" on SSRN.

The abstract states:

Indian polity is under severe strain. Faith of the people in the quality, integrity and efficiency of governmental institutions stands seriously eroded. They turn to the judiciary as the last bastion of hope. But of late, even here things are getting increasingly disturbing and one is unfortunately no more in a position to say that all is well with the judiciary. The independence and impartiality of the judiciary is one of the hallmarks of the democratic system of the government. Only an impartial and independent judiciary can protect the rights of the individual and can provide equal justice without fear and favor. The constitution of India provides many privileges to maintain the independence of judiciary. If the Preamble to our Constitution be regarded as the reflection of the aspirations and spirit of the people, then one thing that even a layman will note is that among the various goals that the Constitution-makers intended to secure for the citizens, “JUSTICE- Social, Economic & Political” has been mentioned before the rest.” 

Judge Jerome frank wrote, “In a democracy, it can never be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of manmade institutions….The best way to bring about those eliminations of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.” Judicial independence ensures that powerful people must conform to law. Need of judicial independence is not for the judges, but for the people. Judges have important social role in the preservation of the liberty. However, independence of judiciary is not absolute it should not be construed in the manner to confer immunity from the demands of justice for misdeeds or to protect a judge from investigation and censure for a valid charge. Independence emphasizes institutional autonomy, not any claims to similar autonomy by actors within the institutional structure. Nevertheless the advocates of independence observe the judges should not be held accountable for following the rule of law. This canvasses a picture of conflict between judicial independence and judicial accountability but they are inseparable and not inconsistent with each other in fact, they nourish each other. 

India is said to have the most powerful and independent judiciary in the world. Unlike many countries with Federal Constitution, India has a single integrated, hierarchical judicial system, and it owes its origin to the British India. What we seek to do in this project is to focus on the question-“What is the need for judicial accountability and transparency?” analyzing it in the light of various factors and recent instances.


June 17, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (1)

University of Toronto Law Journal: Special Issue on Judicial Review

Readers may be interested in some of the contributions to the recently published special issue of the University of Toronto Law Journal, which includes:

Editors’ Note
David Dyzenhaus, Adam Tomkins

The Role Of The Courts In The Political Constitution
Adam Tomkins

Judicial Restraint In The Pursuit Of Justice
Aileen Kavanagh

Deference, Defiance, And Doctrine: Defining The Limits Of Judicial Review
T.R.S. Allan

The Very Idea of a Judge
David Dyzenhaus

Judicial Review at The Margins: Law, Power, and Prerogative
Thomas Poole

Democratic Objections to Structural Judicial Review and the Judicial Role in Constitutional Law
Adrienne Stone

Structural Judicial Review and the Objection From Democracy
Jeffrey Goldsworthy

Abstracts and links available at Concurring Opinions.


June 17, 2010 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0)

Monday, June 7, 2010

For those with a continuing interest in the Bhopal Disaster

The BBC reports that eight former employees of the Union Carbide plant in Bhopal, India have been sentenced to two years in jail a piece.  The charge was "death by negligence."


June 7, 2010 in International/Comparative Law, Mass Torts | Permalink | Comments (0)

Wednesday, May 5, 2010

Gelinas on Judicial Independence in Canada

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:

In Canada, judicial independence is broadly understood as a fundamental principle underlying the constitution. The specific norms that give life to this general principle form a highly complex patchwork of rules and practices which range from unwritten political understandings to constitutionally entrenched legal provisions. The complexity of this patchwork is partly a function of a federal structure having been superimposed onto pre-existing constitutional arrangements, the fundamentals of which are largely unwritten.

The source of judicial independence in Canada goes back to the understanding of that principle which took shape in the British constitutional tradition with the Act of Settlement of 1701. Its importance in the Canadian context has been a function of the special role played by the judiciary as an impartial arbiter of the federal system. Since the adoption of the Canadian Charter of Rights and Freedoms in 1982, the importance of judicial independence has been enhanced by a renewed role of the judiciary in the protection of individual rights and freedoms against intrusion by any organ of the state. 

The aim of this paper is to provide a critical overview of judicial independence in Canada in terms of both institutional structures and informal practices. The paper broadly follows a template suggested by the editor, but emphasizes the features which may appear useful as best practices or which may require attention as problem areas.


May 5, 2010 in International Courts, International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, May 2, 2010

Bauer and Braun on the Role of Class Actions in Long-Term Performance of Distressed Firms

Rob Bauer and Robin Braun (Maastricht University) have posted Long-Term Performance of Distressed Firms: The Role of Class Action Lawsuits to SSRN.

Does shareholder litigation pay off for investors over long horizons and how much does the type of allegation matter‘ We study whether a disciplining effect occurs for distressed firms and their managers and examine two different groups of allegations. Allegations of violations of duty of loyalty effect individuals only, but duty of care pertains to the corporate entity. After litigation we observe a general transformation in firm characteristics and risk exposures, which is consistent with theory. Although generally negative, short- and long-term performance effects differ substantially between types of allegations. We observe performance reversals only in firms with individual directors accused of insider trading. Effects are similar for firms with triggering events that precede the initiation of a lawsuit. At the same time we fail to observe a simultaneous decrease in financial health in the form of their expected default frequency. Our results have important implications for regulator and institutional investor decision-making and monitoring strategies: whether to use litigation to exert control on managers, even in the presence of dual holdings of debt and equity.


May 2, 2010 in Class Actions, International/Comparative Law, Recent Scholarship | Permalink | Comments (0)