Showing papers in "American Journal of Comparative Law in 2014"

Extraterritoriality and Territorial Extension in EU Law

Abstract: This paper examines the global reach of EU law in the context of current debates about the rise of the EU as a global regulatory power. Challenging recent claims to the contrary, its findings are that the enactment of extraterritorial legislation by the EU is extremely rare. Nevertheless, the EU makes frequent recourse to a legislative technique that I term territorial extension, in order to gain regulatory traction over activities that take place abroad. This technique not only leads to the EU governing transactions that are not centered upon the territory of the EU, but it also enables the EU to influence the nature and content of third country and international law. Nevertheless, it is inaccurate to say that the EU thereby seeks to export its own norms. EU legislation which engages in territorial extension is generally characterized by an international orientation revealing the EU to be engaged in action-forcing contingent unilateralism rather than the exportation of norms. The EU seeks to galvanize third country or global action to tackle transboundary problems and to pursue objectives that have been internationally agreed upon. The importance to the EU of this international orientation is clear from the criticisms that the EU has made of extraterritoriality and territorial extension in United States law.

Economic and Social Rights in National Constitutions

Abstract: Much has been written about the global convergence on constitutional supremacy, and the corresponding rise of an apparently universal constitutional discourse, primarily visible in the context of rights. In this Paper, we examine the global constitutional homogeneity claim with respect to economic and social rights. Based on a new and unique dataset that identifies the status of sixteen distinct economic and social rights in the world's constitutions (195 in total), we make four arguments. First, although economic and social rights (ESRs) have grown increasingly common in national constitutions, not all ESRs are equally widespread. Whereas a right to education is so common as to be practically universal, a right to food and water is still very rare. Second, constitutions accord ESRs different statuses, or strengths. More than some one-third of countries identify all economic and social rights as justiciable, another third identify some ESRs as aspirational and some as justiciable, and the last third identify ESRs as aspirational or entrench fewer than two. Third, legal tradition— whether a country has a tradition of civil, common, Islamic, or customary law— is a strong predictor of whether a constitution will have economic and social rights and whether those rights will be justiciable. Fourth, whereas regional differences partly confound the explanatory power of legal traditions, region and legal tradition retain an independent effect on constitutional entrenchment of ESR. We conclude by suggesting that despite the prevalence of economic and social rights in national constitutions, as of 2013 there is still considerable variance with respect to the formal status, scope and nature of such rights. Because the divergence reflects lasting determinants such as legal tradition and region, it is likely to persist.

Citations to Foreign Courts -- Illegitimate and Superfluous, or Unavoidable? Evidence from Europe

Abstract: The theoretical arguments in favor and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions as to their actual purpose. This Article aims to fill this gap in the literature. It offers quantitative evidence from ten European supreme courts in order to assess the desirability of such cross-citations. In addition, it examines individual cases qualitatively, developing a taxonomy of cross-citations based on the degree to which courts engage with foreign law. The Article highlights the often superficial nature of cross-citations in some courts. Yet, by and large, our analysis supports the use of cross-citations: it does not have the pernicious effects sometimes suggested by critics, such as undercutting national sovereignty or the legitimacy of the legal system. At best, cross-citations provide a source of inspiration to interpret national law. At worst, they are largely ornamental and of marginal help to make a particular policy argument more persuasive.

Small Property, Big Market: A Focal Point Explanation

Abstract: This article investigates the formation and operation of a market of informal real estate in China, referred to by the term “small property” (xiaochanquan), as their property rights are “smaller” (weaker) than those of the “big” (formal) property market. In the city of Shenzhen, which experienced exponential population growth from 300,000 to more than ten million between 1978 and 2010 as the first experimental site of China's market reforms, almost half of the buildings are small-property constructions. These illegal buildings, which lack legal titles and are concentrated in 320 intra-city villages, house most of the 8 million migrant workers in Shenzhen and are the main source of livelihood of the more than 300,000 local villagers. The underlying question is how to coordinate people's behaviors in the absence of centralized law. A problem of coordination arises when players have to combine their actions in a certain way among multiple possibilities. In other words, coordination games have multiple equilibria, and therefore the payoffs alone do not determine the behavioral outcome. Instead, the final outcome depends on the specific social settings and individual participants involved, leaving room for less concrete variables, such as history and politics, to impact individuals' choices. Nobel Laureate Thomas Schelling first observed that, in situations requiring coordination, anything that makes salient one behavioral means of coordinating tends to produce self-fulfilling expectations that then lead to the occurrence of that result. This salient solution is called a focal point. The essential idea of the focal point is that the intrinsic magnetism of particular outcomes makes them qualitatively differentiable from the continuum of possible alternatives. Set against the backdrop and context of China's market transition, this research discovers that the political, legal, and economic transition in Shenzhen made rural land development and transfer the focal point, despite its illegality. This focal point coordinates players' expectations to converge on the same equilibrium in the formation and operation of the small-property market. I model the formation of the small-property market as an Assurance Game among social entrepreneurs in Shenzhen, the demolition risk as a Hawk-Dove Game between the Shenzhen government and farmers, and contract risk as a Hawk-Dove Game between a buyer and a seller. This research enriches our understanding of market institutions by applying up-todate insights from coordination games and focal point theory. It also contributes a significant real world example to the theories of coordination games and focal points, most of which are based on laboratory experiments.

Damages Remedies for Infringements of Human Rights Under U.S. Law

Abstract: The laws of the United States provide damages remedies for some acts—primarily but not exclusively by state actors—that infringe many internationally recognized human rights. They mostly do so without specific reference to or incorporation of international human rights law or norms. In domestic cases, U.S. law provides damages remedies for human rights violations primarily through general laws concerning civil rights, constitutional torts and tort or tort-like suits against state entities and officials. In engaging international human rights law, particularly treaties, the United States generally has claimed that domestic law meets applicable international human rights standards and is adequate to fulfill the relevant international obligations of the United States. A handful of exceptional laws—including principally the Alien Tort Statute and the Torture Victims Protection Act—provide remedies specifically for human rights violations where the case involves a transnational element, including some cases of harms committed outside the United States, by foreign defendants, or against foreign victims. Some of these civil cases have relied on a venerable but limited principle of U.S. law that provides for reception of the customary international law of human rights into federal common law. Other features of U.S. law—principally those governing state and official immunity in domestic and transnational cases, and judicial restraint in cases involving foreign affairs and political questions—limit damages remedies that might otherwise be available for infringements of human rights.

The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial Review and Constitution-Making

Abstract: Scholars traditionally deduce the nature of judicial review (whether weak or strong) in a given country from the text of constitutional provisions (e.g., notwithstanding clause, incompatibility framework). They generally contrast the strong-form judicial review exercised under the U.S. model with weak-forms of judicial review exercised under the new Commonwealth model of constitutionalism. This article argues, however, that the strength of judicial review is mainly dictated by the method used for constitution-making. As such, it challenges conventional accounts of how models of constitutionalism come about and which systems should be classified as belonging to the new Commonwealth model of constitutionalism.This article further asserts that the process of constitution-making has practical implications for a country’s present and future constitutional development. It explores how the various theories ascribed to a country’s process of constitution-making lead to different resolutions of such fundamental issues as: (1) the implications of using "notwithstanding" language to overcome constitutional enactments; (2) the effectiveness of legislative self-entrenchment provisions; (3) the legitimacy of using referenda to decide constitutional matters; and (4) the "unconstitutional constitutional amendment" doctrine. The article shows that the process used for adoption and amendment of a constitution defines the nature of constitutionalism in a given country more than any text included in the constitution itself.

In Search of an Identity: Voluntary Foreign Citations in Discordant Constitutional Settings

Abstract: Accounts of voluntary judicial reference to foreign sources in noncanonical settings are rare. The general literature on the subject stresses the importance of factors such as global convergence and inevitability of engagement with foreign jurisprudence; judicial prestigeor legitimacy-enhancing factors; and structural features (e.g. constitutional provisions that call for foreign citations, linguistic permeability, a legal tradition or trajectory of legal education that affects a given apex court's ability and willingness to cite foreign jurisprudence). Whereas these accounts provide illuminating explanations for the rise and variance in the practice of global judicial dialogue, they leave out a crucial factor: the socio-political context within which constitutional courts and judges operate, and how this affects whether and where the judicial mind travels in its search for pertinent foreign sources to reference. In the realm of voluntary reference to foreign law in transitional or discordant constitutional settings, judicial choices as to what to cite and what not to cite cannot be understood in isolation from the views of constitutional courts and judges with respect to the “identity” dimension—the attempt to define who “we” are as a political community, and to articulate in a public way what “our image” or “place” in the world are or should be. Instances of strategic, ad-hoc judicial recourse to foreign law are obviously inseparable from the concrete political settings within which they take place. In post-authoritarian or newly created constitutional settings, such choices can signal a judicial commitment to breaking with a nation's less-than-dazzling past or to belong to a certain group of polities. Such choices may likewise help courts and their backers advance certain worldviews and policy preferences that may be otherwise contested in majoritarian decision-making arenas. Importantly, the foreign references that peak courts in discordant constitutional settings (e.g. Israel, Pakistan, Malaysia, India) select, reject or ignore reflect the judicial position vis-a-vis the nation's contested collective identity quandaries. These judicial picks may thus be a channel for and an indicator of constitutional and political identity formation.

Ex Ante Versus Ex Post Deliberations: Two Models of Judicial Deliberations in Courts of Last Resort

Abstract: This Article discusses supreme and constitutional courts' internal organizational cultures, that is, the way in which justices organize their work and establish informal decision-making norms. Courts of last resort are often presented as exemplary deliberative institutions. The conference meeting, which convenes judges in quiet seclusion to debate, has been glorified as the most significant step in a court's decision-making process. Based in part on qualitative empirical research, I argue, however, that French, American, and European justices may not deliberate in the full sense that deliberative democrats have theorized. The Article distinguishes two types of high court deliberations, which I call the "ex ante" and the "ex post" models. In the first model, prevalent in the French and European courts, judges draft and deliberate the court's merits opinion before the case is orally argued and scheduled for the conference meeting. In other words, cases are decided before being decided. The second model is typical of AngloAmerican supreme courts, in particular the United States Supreme Court; in this model, justices do most of the deliberative work after the case has been orally argued and a vote on the merits has taken place at the conference. In other words, cases are decided after being decided. Despite different judicial cultures, one common theme is that in both ex ante and ex post courts, judges tend to decide cases through a succession of multiple small group interactions involving non-judicial personnel rather than a single prolonged face-to-face deliberation. The upshot of the Article is the formulation of a dual-influence hypothesis: a court's style of judicial opinions may form deliberations as much as deliberations shape opinions.

Constitutional Courts and Consolidated Power

Abstract: Many new democracies exhibit a disturbing lack of electoral competition. All too often, the first party to hold office creates a network of power and patronage that chokes off meaningful political challenge. These strong party democracies, with power often being held by the inheritors of the political mantle of those that led the opposition to prior authoritarian rule, exhibit a tendency toward the three “C’s” of associated with the lack of accountability: clientelism, cronyism, and corruption. Such strong-party regimes and their associated pathologies present relatively new constitutional courts with a distinct set of controversies that necessarily bring the judiciary into conflict with consolidating political power. This article explores the form that judicial responses to the excesses of political dominance might take. Three courts are selected as exemplars of such responses. In the first instance, the Colombian Constitutional Court repudiated the attempt of President Uribe to * Reiss Professor of Constitutional Law, NYU School of Law. amend the constitution to permit a third term in office, despite the lack of reasoning to support the rejection of a largely procedurally proper constitutional amendment. In the second, the South African Constitutional Court has scrupulously avoided any frontal confrontation with the current African National Congress government, instead casting its repeated rejection of government efforts to insulate itself from accountability in narrow procedural rulings or in rulings based on other, non-politically charged sources of law. Finally, there is the Thai Constitutional Court which, while providing the strongest jurisprudential defense of its intervention, appears an active ally of one partisan camp as the country hovers on the brink of civil

Blasphemy, Holocaust Denial, and the Control of Profoundly Unacceptable Speech

Abstract: In the last twenty five years there have been at least three major global controversies – those involving Salman Rushdie’s The Satanic Verses, the publication of various cartoons in Denmark's Jyllands Posten newspaper, and the publication on YouTube of a film entitled Innocence of Muslims—where the Islamic world has reacted with outrage to what were regarded as grossly offensive blasphemous publications by western publishers. Many (western) commentators, writing in the context of these controversies, expressed the view that it was always and inherently unacceptable for the law to prohibit the exercise of freedom of expression on the basis that the expression in question was offensive to religious sensitivities or blasphemous. This article critically analyses this viewpoint. It notes that the outrage generated by these publications was felt both from the perspective of individual Muslims but, more importantly, it was also felt at a corporate level by Islamic society generally and on the basis that blasphemy against God and against sacred elements of Islam is profoundly immoral in so far as Islamic society is concerned. It is contended that, certainly within Europe, the concept of speech being restricted because it is profoundly immoral and consequently profoundly offensive from a societal standpoint is well known – and is manifest in, for example, laws prohibiting holocaust denial. It is concluded therefore, that the objection to a blasphemy law lies in the fact that what is at stake is speech which is irreligious and thus that the difference in approach of that section of the Islamic world that would like to see increasingly stringent blasphemy laws or laws against defamation of religion and that section of the western world that regards such laws as anathema, lies in the fact that religion forms a key element of the public morality of Islamic society but not of western society. It is further concluded that the vehemence of the objections of such western commentators is fuelled by a failure to understand the significance for the religiously devout of their religious beliefs as their primary point of self-identification, and reflects more broadly the fact that it may be simply impossible for someone who is not religious, to understand the nature of religion and consequently, the nature of religious sensitivities.

Constitutional Amendment by Constitutional Desuetude

Abstract: Scholars have shown that written constitutions may be informally amended in various ways, for instance by judicial interpretation, statute, or executive action. But scholars have yet to fully appreciate that written constitutions may also be informally amended by desuetude. Informal amendment by constitutional desuetude occurs when a constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by political actors. Though it is a species of informal amendment, constitutional desuetude possesses unique properties. Constitutional desuetude reflects the informal repeal of a constitutional provision as a result of the establishment of a new constitutional convention. Despite its obsolescence, the desuetudinal constitutional provision remains entrenched in the constitutional text. Consequently, although informal amendment generally leaves the constitutional text entrenched, unchanged and politically valid, this particular variation of informal amendment leaves the text entrenched and unchanged but renders it politically invalid. In this paper, I illustrate and theorize the phenomenon of informal amendment by constitutional desuetude with reference to the Canadian Constitution, I construct an analytical framework for identifying constitutional desuetude in other jurisdictions, I distinguish constitutional desuetude from other forms of obsolescence, and I also explore the costs of constitutional desuetude.

Property and Democratic Deliberation: The Numerus Clausus Principle and Democratic Experimentalism in Property Law

Abstract: First-year law students soon become familiar with the numerus clausus principle in property law. The principle holds that there is a limited menu of available standard property forms (the estates, the different types of common or joint ownership, the different types of servitudes) and that new forms are hardly ever introduced. Over the last fifty years, however, property law has changed dramatically. A wealth of new property forms has been added to the list. This dynamism in the list has remained largely unexplored and is the subject of this Article. This Article focuses on a selection of recently created property forms, which share an important quality. They establish mechanisms of democratic and deliberative governance for resources as diverse as natural resources, scarce urban land, historic landmarks, or cultural institutions. The study of these property forms sheds new light on how the numerus clausus principle works in practice and on why it exists in the first place. It also discloses a fundamental transformation in the way we think about the institution of property and the benefits we may draw from it. We have come to believe that, for some critical resources that involve public interests, use and management decisions should be made not by a single owner, whether private or public, but through a process that is democratic and deliberative. This Article examines sympathetically but critically this aspiration to deliberative democratic governance in property law.

Survival of the Fittest(?): The Endurance of the ROC Constitution and the Constitution of Japan

Abstract: Conventional wisdom has it that the endurance of a constitution hinges on the interaction of design factors and environmental elements. For a constitution to be long-lasting, it needs to be not only self-enforcing domestically, but also resilient when facing international cataclysm. Yet these macro theories fail to tackle the nuanced variances in each constitution, especially those in East Asian countries. Attempting to fill this academic lacuna, this Article compares the Constitution of the Republic of China and the Constitution of Japan, two stable constitutions that have not been replaced since World War II. It suggests that although there are some similarities, factors that contribute to the longevity of the two constitutions are quite different. The durability of the Constitution of Japan could be better explained through the lens of constitutional design. By contrast, the stability of the ROC Constitution results mainly from environmental reasons irrelevant to the parchment barrier itself.

Social Hierarchies and the Formation of Customary Property Law in Pre-Industrial China and England

Abstract: Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households than richer ones, but Chinese customary law allowed debtors to indefinitely retain redemption rights over collateralized property, whereas English debtors would generally lose the property permanently if they failed to redeem within one year. This article argues that the comparatively “egalitarian” tendencies of Qing and Republican property institutions stemmed from the different ways Chinese and English rural communities allocated social status and rank. Hierarchical “Confucian” kinship networks dominated social and economic life in most Chinese villages. Within these networks, an individual’s status and rank depended, in large part, on his age and generational seniority, rather than personal wealth. This allowed many low-income households to enjoy status and rank quite disproportionate to their wealth. In comparison, substantial landed wealth was generally a prerequisite for high status in early modern England, effectively excluding lower-income households from positions of sociopolitical authority. Chinese smallholders possessed, therefore, significantly more social bargaining power, and were more capable of negotiating desirable property institutions. Paradoxically, the predominance of kinship hierarchies actually enhanced macro-level political and economic equality. Category: Comparative Legal History

China's Stealth Urban Land Revolution

Abstract: Both supporters and critics of China’s urban land use regime use the language of state ownership to describe it. But significant reforms have taken place to that regime since the early 1990s — so much so that over much of China’s urban land area, de facto re-privatization has already occurred. This is because the long-term use rights granted over urban land are economically and legally very similar to full private ownership, and indeed can be found in other jurisdictions where nobody doubts the existence of a private land ownership regime. Although some uncertainties remain, this is because the cost of maintaining them is low whereas the cost of resolving them is high; as that cost balance changes over time, there is reason to believe that they will be resolved before they become a drag on economic development. The analysis presented here applies not only to China, but to any jurisdiction where something less than full fee simple ownership (or its equivalent) is the dominant form of land tenure.

What Can We Learn from Japanese Anime Industries? The Differences Between Domestic and Overseas Copyright Protection Strategies Towards Fan Activities

Abstract: Recently the Japanese government revised its copyright law, and one of the major changes in it is that illegal downloaders in Japan now face up to two years' imprisonment or a fine of ¥2 million (approximately US$19,265), or a combination of the two for downloading certain kinds of copyrighted content. These momentous changes have triggered backlashes around the country from below, as might be expected. Interestingly, the industrial practices of Japanese content industries have developed certain domestic and foreign copyright-related strategies that tolerate some alleged copyright-infringing fan activities. This paper argues that, although some of these strategies are incompatible with the current copyright law regime, and specifically the aforementioned revision to Japan's copyright law, they have unconsciously created unexpected positive outcomes. This paper uses an integrative approach that combines market analysis and comparative law methods—to examine these copyright strategies, and proposes an alternative solution to deal with the copyright problems raised by fanbased activities.

Comparative Law and its Clients

Abstract: Scholarly writings on comparative law to a large extent deal with general aspects of the discipline, in particular with its relation to other methods of research and analysis, with the proper method of comparative enquiries, and with the objectives and purposes of comparative law. Over the years, the so-called functional approach to comparison, widely accepted in the past, has attracted much criticism from authors stressing the embeddedness of legal rules and institutions in a given legal system, and its intertwining with the characteristics of a specific society, economy, culture, and political system. This Article advocates a pluralism of methods and selection of the method of enquiry in accordance with the demand of those who intend to make use of comparative knowledge, i. e., the clients of comparative law. With a view to this goal, it sheds light upon the development of the discipline over several stages, highlighting various objectives pursued by the leading scholars: the contribution of comparative enquiries to the knowledge about a foreign nation; the aspiration towards the discovery of the common core of legal systems; the search for a model guiding the development of domestic law; the preparation of uniform law instruments; and the efforts to maintain or restore uniformity in the application of such instruments. The Paper then turns to the demand side of comparative law: the various clients of comparative research who, by their specific demand, shape the proper method of a comparative enquiry. The author identifies—alongside scholars from various disciplines—several groups of customers: legal practitioners and the courts, national legislatures, unification agencies, and a broad array of public and private institutions in the international arena. For each group of customers a specific type of demand for comparative law can be ascertained, which often depends on additional factors such as the legislative procedure laid down in the national constitution. It turns out that many of these customers are primarily interested in the black letter law of foreign countries as applied in legal practice. In some instances, however, the demand extends to the social, economic, political, and cultural environment of the law.

Why Does Executive Greed Prevail in the United States and Canada but Not in Japan? The Pattern of Low CEO Pay and High Worker Welfare in Japanese Corporations

Abstract: According to a list of the 200 most highly paid chief executives at the largest U.S. public companies, in 2012 Oracleâ–™s Lawrence J. Ellison was the best-paid CEO, earning $96.2 million as total annual compensation. He has received $1.8 billion over the 1993â–“2012 time period. The lowest-paid on the same list is General Motorsâ–™ D.F. Akerson, who earned $11.1 million. The average national pay for a non-supervisory U.S. worker was $51,200 in 2012, meaning that the average of the top CEOs made 354 times more than the average non-supervisory worker in 2012. Hunter Harrison, Canadian Pacific Railway Ltd., was the best-paid CEO in Canada for 2012 and received CDN $49.2 million in total annual compensation, significantly higher than Canadaâ–™s best-paid CEO in 2011, Magnaâ–™s F. Stronach, who received CDN $40.9 million. In 2011, the average Canadian annual salary was CDN $45,488 and Canadaâ–™s top fifty CEOs earned 235 times more than the average Canadian worker. These executive pay practices contrast with the growing inequality in Canada, recently illustrated with the finding that 40% of Indigenous children live in poverty. In contrast, Japanâ–™s highest-paid CEO is Nissan Motor Co.â–™s Carlos Ghosn, who earned 988 million yen ($10.1 million) in the year ending March 2013, barely changed from the previous year and only modestly improved from his US $9.5 million compensation in 2009. That does not even put him among the top 200 most highly paid U.S. company chiefs and the top twenty best-paid CEOs in Canada for 2012. Why are Japanese CEOs paid considerably less than their American or Canadian counterparts? This Article argues that the activism of long-term-oriented institutional investors such as banks and the tying of executive pay to worker welfare in the context of a culture of intolerance towards excessive executive compensation explain to a great extent the development of a pattern of low executive pay in Japan, despite the recent weakening of bank monitoring as a result of the adoption of a U.S. style of governance in some Japanese companies. The Japanese experience also demonstrates that lower executive compensation does not compromise firm performance and is a necessary condition to building a stakeholder-friendly corporation. For example, the CEO of Toyota (the worldâ–™s biggest automaker), Akio Toyoda, earned 184 million yen ($1.9 million) in 2012, a 35% increase from the previous year. He is the lowest-paid chief of the worldâ–™s five biggest automakers, and led Toyota to generate the highest return in 2012 among the top five global automakers. Toyotaâ–™s outlook for increasing profit prompted the automaker to approve the biggest bonus for workers in recent years. By contrast, Alan Mulally, Ford Motor Co.â–™s chief and the best paid among the top five, took home $21 million in 2012.

Separation of Powers and the Growth of Judicial Review in Established Democracies (or Why Has the Model of Legislative Supremacy Mostly Been Withdrawn From Sale

Abstract: Most of the literature explaining the tremendous growth of judicial review in recent decades has focused on the transition from authoritarian rule or post-conflict states and employed a broadly public choice methodology to account for the change. To the extent explanations have been presented for the significant number of established parliamentary democracies that have also created or expanded judicial review during the same period, these have also mainly relied on a similar public choice framework. This article presents an alternative— or at least supplementary—account of the abandonment of traditional legislative supremacy in this latter group that is institutional in content and puts the parliamentary nature of these democracies in the center of the picture. It identifies a series of developments and changed institutional practices that have undermined faith in political accountability as an effective and sufficient check on the undue concentration of governmental authority. In this way, it argues that separation of powers concerns have been an important reason for the growth of judicial review in these countries.

The Faces of Judicial Independence: Democratic versus Bureaucratic Accountability in Judicial Selection, Training, and Promotion in South Korea and Taiwan

Abstract: This Article examines parallel judicial independence-related institutional arrangements and controversies in South Korea and Taiwan and, based on these, theorizes that there exists a sharp philosophical bifurcation between judicial independence regimes that make judges either bureaucratically or democratically accountable. After uncovering the Germanic origins of the two jurisdictions' judicial selection, training, and promotion methods and showing how these arrangements have functioned, this study explains how these have recently been reformed in ways that represent the adoption of Americanstyle judicial independence logic. To properly understand these transformations, the Article further develops Mirjan Damaska's theory of the dichotomous styles, or "faces," of judicial independence to illustrate the existence of two different logical approaches to securing judicial independence and to analyze how they are being mixed in Korea, Taiwan, and elsewhere.

Retroactivity and Prospectivity of Judgments in American Law

Abstract: In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect – that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that application of the new rule will upset serious and reasonable reliance on the prior state of the law. This chapter summarizes these exceptional cases. It shows that the proper occasions for issuing exclusively or partially prospective judgments have varied over time and that there are still substantial differences in approach according to the particular jurisdiction and the kind of law under consideration. The chapter concludes with a brief survey of some of the still unresolved jurisprudential and constitutional problems raised by recognition of the power of courts to issue non-retroactive judgments.

The Influence of Human Rights and Basic Rights in Private Law in the United States

Abstract: International human rights and notions of basic rights have had little influence on private law in the United States. Constitutional rights in the United States are almost exclusively viewed in terms of the individual’s relationship with the State, not individuals’ relations with each other. At the same time, U.S. self-sufficiency and international power has allowed the United States to favor its parochial culture over international human rights discourse, a tendency further encouraged by legally and socially entrenched federalism. Virtually the only private law areas heavily influenced by notions of basic rights are anti-discrimination law and defamation, and both are easily distinguished exceptions in a country primarily focused on individual autonomy, parochial politics rather than international pressures, and federalism. Incorporation of international human rights and basic rights into U.S. private law will likely remain very limited for the foreseeable future, with the U.S. Supreme Court especially concerned with preserving private law as an area of State legislation.