Comparative Law Papers on LegalTheoryBlog (Solum)

Professor Solum's LegalTheoryBlog this week had these references to papers of interest to comparative lawyers (focus on the US and Europe):

First up, there's a link to a Columbia Legal Theory Workshop paper by Professor Robert Kagan (Berkeley) entitled "American and European Ways of Law: Six Entrenched Differences". (link here). Professor Kagan's paper opens with the question "Are European and American legal systems converging?", and deals with this theme primarily by asking "whether aspects of law, legal processes, and legal institutional arrangements that seem distinctively American, significantly different from their European counterparts, are now being adopted in Europe[?]". These 'distinctively American' aspects of law, processes and institutions are summarized under the heading of "adversarial legalism". As compared to European "legal styles", the American "style" of adversarial legalism would entail: "(1) more complex bodies of legal rules; (2) more formal, adversarial procedures for resolving political and scientific disputes; (3) more costly forms of legal contestation; (4) stronger, more punitive legal sanctions; (5) more frequent judicial review of and intervention into administrative decisions and processes; (6) more political controversy about legal rules and institutions; (7) more politically fragmented, less closely-coordinated decision-making systems; and (8) more legal uncertainty and instability". The paper argues that although dynamics very similar to those that have created adversarial legalism in the US operate in Europe. However, a series of "entrenched differences" are thought to be "extremely unlikely to disappear". These differences are: "(1) The political nature and remedial powers of American judiciaries; (2) High levels of adversarial legalism in the American regulatory process; (3) The laws and institutional practices that make American tort law uniquely threatening; (4) The limited rights to social provision and employee protections that prevail in American law ; (5) The less demanding obligations of American tax law; (6) America’s more punitive criminal sanctions, more permissive gun laws, and greater reliance on adversarial legalism in criminal adjudication and police accountability".

Other comparative law papers cited on LegalTheoryBlog:

Noga Morag-Levine (Michigan State University - College of Law), "Judges, Legislators, and Europe's Law: Common-law Constitutionalism and Foreign Precedents" (here on SSRN)

Kenneth Glenn Dau-Schmidt and Carmen L. Brun (Indiana University School of Law-Bloomington and Independent), "Lost in Translation: The Economic Analysis of Law in the United States and Europe" (Columbia Journal of Transnational Law, Forthcoming) (here on SSRN).

Retour au Port pour 'Le Clemenceau' : Conseil d'Etat Decision on French Aircraftcarier

The French Conseil d'Etat has given its Decision in a case brought by French anti-asbestos associations against the government for its decision to send the former aircraftcarier 'Le Clemenceau' to India to be scrapped on a beach. As the carrier's hull still contained massive quantities of toxic substances, scrapping it on a beach would have caused important environmental and public health damage in India.

The basis for the actual decision to suspend the governmental licence for the export of military apparel was the Conseil's view that there was a real chance that export of the carrier could be prohibited under the EC Regulation on the Import and Export of Waste from the European Communities (Regulation EC 295/93).

The wider significance of the decision may lie in its implications for the treatment of 'foreign' interests in local procedures for judicial review. The issue is only addressed in passing, when the Conseil discusses the 'urgency' requirement for intervention. This requirement of French administrative law would be met whenever the execution of an administrative act would cause damage, in a sufficiently serious and immediate way, to "a public interest, to the situation of the applicant, or to the interests that the applicant seeks to defend". The Conseil holds that the danger to "public health and the environment" (unqualified) that could materialize once the ship would be within Indian sovereign territory and irreversible demolition work would have started, is of such a nature as to pose a serious and immediate threat "to the interests defended by the applicants". This shows, it would seem, that the interests of Indian workers and people living close to the scrapping-beaches, are brought within reach of the Conseil only through the statutary mission of the associations and not through the general public interest ground. On the other hand, it seems clear that the Conseil has not demanded that these associations specifically include overseas asbestos issues in their mission.

There is an ever clearer human rights dimension to this sort of serious environmental damage (see for a recent paper discussing relevant issues within the American constitutional context this paper by Robin Kundis Craig: "Should there be a constitutional right to a clean an healthy environment?"). In the European context, there is the important Lopez Ostra ruling of the European Court of Human Rights, affirming the inclusion of serious damage to an individual's living environment under the article 8 right to respect for private life. The question of whether damage to Indian citizens in India caused by a French military vessel sent there by the French government would fall within the jurisdictional scope of the European Convention is, I would submit, not one with an obvious answer. Recent statements by the Court in the Issa case (here) would, however, seem to suggest that this is not unimmaginable. For now, the only clue the Conseil d'Etat may have given as to its view on the human rights dimension of the issue might be gleaned from its decision that the International Federation of Human Rights Leagues did not have standing to intervene because the object of the proceedings was not covered by its statutes.

Book Review: Koopmans, 'Courts and Political Institutions' (by Felix Ronkes Agerbeek)

Felix Ronkes Agerbeek sent this Book Review of former ECJ Judge Koopmans' book 'Courts and Political Institutions - A Comparative View' (Cambridge 2003), to be published shortly in the Common Market Law Review. Many thanks for that!

With his characteristic enthusiasm Tim Koopmans, former Judge at the European Court of Justice, mentions in the foreword of Courts and Political Institutions that ‘it has been a great pleasure to compose this book’. The relatively compact volume offers a comparative view of the legal relations between political institutions and the courts in several European countries and the United States. It is difficult to think of anyone who would be in a better position than Koopmans – who was also professor of constitutional law at Leyden University – to provide just such a perspective. The book draws from many of Koopmans’ earlier writings and clearly is a product of an enduring passion for comparative constitutional law. The result is a work that treats with remarkable lucidity the colossal topic of ‘judges and politics’.

Koopmans’ comparative study concentrates on the constitutional systems of Germany, France, the United Kingdom, the United States and the Netherlands. Instead of analysing each country separately, the study proceeds along thematic lines. It is divided into ten chapters with titles such as ‘The growth of judicial power’, ‘Techniques of judicial protection’ and ‘Courts and individual rights’. Although some chapters are further subdivided into countries, the comparative material – which includes historical contextualization – is generally woven into the discussion of the different themes. For example, under the heading ‘The area of discretion’ Koopmans refers to the theory of ‘Ermessen’ (Germany), the Barel-decision of the Conseil d’Etat (France), the decision of the Supreme Court in Overton Park (United States), and Wednesbury unreasonableness (United Kingdom). This approach is a great strength of the book. Surprisingly perhaps, Koopmans only mentions the European courts in Strasbourg and Luxembourg on occasion. The European Court of Justice, for instance, is absent from the section on the influence of a federal form of government on the respective powers of courts and political institutions (Chapter 7.2). The discussion in that section of Katzenbach v. McClung raises issues that have their parallels in EC law (think of the Opinion of AG Jacobs in Konstantinidis).

The book deals with numerous subjects near and dear to constitutional lawyers: judicial activism, the counter-majoritarian difficulty, the separation of church and state, the sovereignty of parliament, the political question doctrine – to mention only a few. Of course, a work that is so wide in scope must inevitably compromise detail. One should not expect a comparative analysis of the same depth – and conducted with the same meticulousness – as Lenaerts’ Le juge et la constitution (Bruylant 1988). The reader Koopmans has in mind is ‘the senior student of law, history or political science … with a cosmopolitan view of life in society’, and he engages this reader through historical anecdotes and great story-telling, rather than through academic exactitude.

Koopmans distinguishes between judicial and political activities. He acknowledges that this distinction is inherently problematic. Yet, he generally avoids the normative complexities by applying an institutional standard, which links judicial activities to courts and political activities to the legislature and the executive. Therefore, the general conclusion that the boundary between law and politics is drawn differently in different countries simply confirms the divergences between various constitutional systems as to the distribution of powers among the institutions. At the same time, Koopmans makes more than a few normative statements. For instance, he emphasises that it is important for courts to respect ‘the sphere of action that is the proper sphere of politics’ and that there may be problems that are ‘too large for the courts’. He also states that the growing influence of judicial decisions on matters of public law ‘compels us to rethink the constitutional relationship between the courts and the legislative and executive bodies’. This begs the questions of what Koopmans believes to be the ‘proper sphere of politics’ or the best lines along which to rethink the relationship between the courts and the political institutions. In fact, this may be the only respect in which Courts and Political Institutions might be considered slightly disappointing: the absence of a general view from someone with Koopmans’ knowledge and experience on the constitutional role of the judiciary. When he writes about the advantages and disadvantages of judicial decision-making, his professional background clearly comes to the fore: ‘From force of habit, judges take individualistic positions. They see social problems in terms of the rights of individuals rather than of the organization of society … To that extent the judiciary has some kind of professional bias … A bias may also be present when values are in issue which have a natural appeal to lawyers, for example, procedural guarantees…’. These are valuable observations, but ultimately the book does not defend a thesis, in contrast to other comparative studies such as Maduro’s We the Court (Hart 1998) and Lasser’s Judicial Deliberations (Oxford University Press 2004), or to Sunstein’s study of ‘judicial minimalism’ at the US Supreme Court, One Case At A Time (Harvard University Press 1991).

Nonetheless, Courts and Political Institutions deserves to be widely read. Koopmans is a fervent comparatist and his book is, above all, a plea for comparative constitutional studies as a means to gain more understanding about one’s own politico-legal culture and its constitutional choices. In this respect, the book certainly manages to convince. It effortlessly guides the reader through a wide range of classic, complex issues of constitutional law, while quoting a variety of sources including Marbury and Montesquieu, as well as Blaise Pascal and Oscar Wilde. It is a great pleasure to read this book.

T. Koopmans, Courts and Political Institutions – A Comparative View, Cambridge 2003, ISBN 0-521-53399-6, 299 pp.

Legal Institutions in East Asia: New Papers

Here's a series of recent papers on the design and reception of legal institutions in Asia; increasingly a major and absolutely fascinating area for comparative research.

Update 9/2/6: Two weblogs with tons of information on Chinese legal matters: Chinalawblog (by practicing lawyers Dan Harris and Steve Dickinson) and Chinese Law Professor Blog (a member of the Law Professor Blog Network and hosted by prof. Donald Clarke, author of one of the papers below).

Global Institutions, Indigenous Meaning: Lessons from Chinese Law for the New Institutionalism, Ethan Michelson (Indiana University Bloomington, Dept of Sociology, Dept of East Asian Languages & Cultures) (Link)

China's legal reforms support an oft-told story about the global diffusion of Western institutional forms. A less commonly recounted story, and the one told in this paper, is about the manner in which institutions that at this superficial, symbolic level conform to dominant exogenous models also undergo a process of local transformation through cultural translation. This paper develops a theory of institutional appropriation and indigenization in which meaning-making activity in general and divergence from global institutional models in particular is properly understood as the product of local strategic agency. Three empirical examples from Chinese law - (1) law firm naming conventions and their changes over a ten-year period (1995-2004), (2) the black gowns judges and lawyers have been required to wear in the courtroom since 2001 and 2003 respectively, and (3) the use of the gavel in the courtroom since 2002 - reveal conditions under which the local representation of imported institutions not as foreign transplants but rather as home-grown traditions is strategically produced by the purposive, and often contested, efforts of actors in the marketplace and in the state to define reality in a manner consistent with their respective interests. An implication of the process of appropriation and indigenization is that the adoption of exogenous institutional forms (e.g., Western legality) may serve to reproduce local institutional arrangements (e.g., socialist legality) at least as much as it threatens to undo them.


The Role of Law in China's Economic Development, Donald C. Clarke (George Washington University Law School), Peter Murrell (University of Maryland - Department of Economics), Susan H. Whiting (University of Washington - Department of Political Science) (Link)

This paper surveys China's legal system in the economic reform era. We analyze the role of law in the economy, assessing whether China's formal legal system contributed to those expectations of stable and predictable rights of property and contract that are prerequisites for growth. The paper begins by detailing legal developments. The relationship between legal and economic development was bidirectional - a coevolutionary process. We then examine three spheres of activity - property rights, agreements to trade, and corporate governance - asking whether law plays an important role, how that role has changed, and what the current problems are. Common themes arise. First, there have been profound changes, with law playing an increasingly important role. Second, formal legal institutions have not made a critical contribution to China's remarkable economic success. This latter conclusion leaves open the question of which mechanisms generated the necessary expectations of reasonable returns from decentralized economic activity. We briefly reflect on mechanisms other than law that might have produced such expectations, for example, the role of local Communist Party officials. However, lack of empirical information suggests this is a topic for future research.


Politics, Ideology, and Legal System Reform in Northeast Asia, John K.M. Ohnesorge (University of Wisconsin Law School) (Link)

Legal systems throughout East Asia are in the midst of rapid and potentially fundamental change, across a range of legal fields. This paper, prepared for a conference on the potential effects of 9/11 on legal and social change in East Asia, examines East Asian legal reforms in the areas of administrative law and corporate law. These two fields, though not often studied in tandem, both respond to a pair of competing sentiments, one which can be thought of as "neo-liberal," and the other which might be termed populist/progressive. These competing sentiments are at play as East Asian legal reforms unfold, and it is as yet unclear which of them will be more fully served once the reforms take hold in society. Complicating the picture are the effects of 9/11 on America's foreign policy, as well as the effects of the "Enron" crisis in American corporate governance, both of which have shifted America's focus on East Asian law reform from where it stood at the end of the 1990s.


Constitutional Choices in Taiwan: Implications of Global Trends, Tom Ginsburg (University of Illinois College of Law) (Link)

The current Republic of China Constitution is a modified version of that drafted on the mainland in the late 1940s. While incremental reforms in the 1990s helped to tailor the Constitution to the needs of the island of Taiwan, they also produced a number of unintended consequences that have led to a stalemate between executive and legislative branches. As President Chen Shui-bian renews his call for constitutional reform, Taiwan has an opportunity to correct these severe defects in the political system. This paper considers the design of constitutional reform in light of recent global trends and Taiwan's distinctive political and social context. It argues that Taiwan's major political cleavages are of the type best resolved by some form of presidential system. It also considers a number of other issues of constitutional design, including direct democracy, constitutional review, and other oversight bodies.

Oldfather on Judicial Inactivism (SSRN & Georgetown Law Journal)

Chad Oldfather (Marquette University) has posted "Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide" on SSRN. A very interesting take on an underexplored dimension of important debates. Here's the abstract:

Debate over the proper function of courts tends to focus on delineating the outer limits of judicial authority. Of primary concern is the phenomenon often described as judicial activism. Although there is no fixed notion of precisely what constitutes judicial activism, the idea underlying the activist critique is that we ought to be worried about judges overstepping the bounds of their role, and somehow or other doing more than is proper. What might be characterized as judicial inactivism, in contrast, has generally been overlooked. This is somewhat curious. Underlying concern about judicial inactivism is a recognition of the possibility that judges might fail to perform the minimal components of the judicial function. The consequences of such a judicial failure to act - typically the preservation of the status quo - will generally be no less significant than those resulting from judicial action. Indeed, since improper judicial inaction might be harder to detect than improper judicial action, one might suppose that we should be more concerned about judicial inactivism than we are about judicial activism. This article attempts to provide an answer to the question of what judicial inactivism might look like. In so doing, it draws on previous efforts to articulate models of civil adjudication, and unites that literature with the largely distinct body of work addressing the topic of judicial candor. The goal is to articulate at least some of the components of the adjudicative duty - a court's minimal adjudicative obligations when presented with a justiciable claim over which it has jurisdiction.

ECJ: Lugano Opinion (EU Law Blog)

Just want to refer you to EU Law Blog's excellent summary and discussion of the lengthy Opinion issued this week by the full ECJ on the question of whether the Communities have exclusive competence to negotiate a renewed Lugano Convention (on civil jurisdiction and judgment recognition) with EFTA States. The Opinion contains an extensive overview of the current state of the law on external competences.

Law Reform, in 1873 England

The Guardian today has this story from its archives on the reform of the Inns of Court in 1873 London. The short article by an anonymous barrister, applauding initiatives for a more systematic legal education, provides a fascinating look back to a very different (was it?!) age. Some excerpts:

The Inns of Court were, in short, and for most practical purposes still are, places of education which educate nobody. (...) At last the benchers, terrified by the thought that Lord Selborne was coming into power, have made up their minds to do something which shall at any rate look vigorous. They have made it necessary for every man in future called to go through some sort of examination. The most conservative members of the most conservative profession have admitted the necessity for a revolution.

By far the most important [object of the reform] is to get systematic legal instruction. The law has been a science which could be picked up by practice but which could not be learnt, for the very simple reason that there was nobody to teach it. (...) The experience in chambers has been more than half wasted since it is impossible to understand what a practitioner does unless some one will explain to you why he does it; to study in chambers whilst receiving no teaching is like walking the hospital without getting any instruction in medicine.