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1. Beyond Justices The Legal Culture of Judges in Mexico

Author:
Azul Aguiar Aguilar
Publication Date:
06-2020
Content Type:
Working Paper
Institution:
German Institute of Global and Area Studies
Abstract:
Judges’ ideas, beliefs, and values are central to adjudication. Empowering the courts was a crucial step in third‐wave democracies and, after some unfulfilled promises regarding the potential of the judicialization of politics for rights expansion, we need to learn more about the individuals that were empowered and what their legal culture can tell us about judicial behavior. Do judges consider themselves political actors having a legislative role? What type of legal culture do they have? To advance our understanding of these key determinants of judicial behavior, I use a survey with federal judges in Mexico to explore to what extent judges adhere to a positivist or a principle‐based constitutionalist legal culture. Findings suggest that there is a tension in the judiciary, with some judges embracing the idea of legislating from the bench while others prefer to play the role of being “the mouthpiece of the law.”
Topic:
Culture, Democracy, Legal Theory, and Judiciary
Political Geography:
North America and Mexico

2. Universal Representation: Systemic Benefits and the Path Ahead

Author:
Lindsay Nash
Publication Date:
08-2019
Content Type:
Journal Article
Journal:
Journal on Migration and Human Security
Institution:
Center for Migration Studies of New York
Abstract:
At a time when politics, financial considerations, and a push for expediency put pressure on the US immigration system, it can be difficult to have faith in the adjudicatory process. Case resolution quotas, directives that constrain courts’ ability to render justice in individual cases, and executive decisions that contract immigration judges’ discretion contribute to an immigration system that looks less and less like judicial adjudication of some of the highest-stakes cases in our legal system and more like a ministerial claims-processing scheme. A ray of hope exists, however, in the proliferation of public defender–style systems that offer universal representation to those facing deportation. This essay describes the genesis and expansion of the universal representation movement — a project based on the idea that indigent individuals should be entitled to counsel regardless of the apparent merits or political palatability of their case. It describes the benefits of such a program to the immigration adjudication system writ large. Beyond the oft-cited increase in success rates for individuals represented and the benefits to the communities in which such programs are located, universal representation promotes the integrity of the court system and strengthens an adjudicatory procedure that, for too long, has functioned primarily to expeditiously churn through cases. Finally, looking forward, it considers some of the challenges this movement faces as it grows and it identifies areas for further expansion.
Topic:
Immigration, Border Control, and Legal Theory
Political Geography:
United States and North America

3. Reforming Investor-State Arbitration by Recourse to the Domestic Courts of Host States

Author:
Armand de Mestral and Lukas Vanhonnaeker
Publication Date:
09-2019
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation
Abstract:
In response to concerns raised about investor-state arbitration (ISA), different proposals for reform of this means of dispute settlement have been proposed. One such proposal is to entrust domestic courts with the resolution of investment disputes. Although opting for the resolution of investment disputes before domestic courts has led to some discussion about the advantages and difficulties of this approach, very few studies have analyzed the specificities of domestic regimes in this regard. Many questions remain unanswered, including whether foreign investors have, in practice, access to domestic courts in the host state and whether the remedies available domestically are comparable to those available in ISA. In an attempt to answer some of these questions, a questionnaire was prepared and answered by respondents in 17 countries, in addition to Canada, from different regions of the world.
Topic:
Reform, Democracy, Legal Theory, and Investment
Political Geography:
United States, Canada, South America, North America, Mexico, and Peru

4. Making Enhanced CACs the Rule: A Proposed Amendment of the Foreign Sovereign Immunities Act

Author:
Gregory Makoff
Publication Date:
09-2018
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation
Abstract:
The recent rise in sovereign debt litigation in the US Federal Court System is an unintended consequence of the US Foreign Sovereign Immunities Act of 1976 related to an unanticipated shift of the international sovereign debt market from a narrow loan market to a global bond market. Collective action clauses (CACs) — developed in 2003 and “enhanced” in 2014 — are, in theory, an effective contract-based tool to facilitate orderly debt restructurings and control the holdout creditor problem. However, compliance by countries is voluntary and may not be sustained. To assure sustained compliance and to reduce the future incidence of holdout creditor litigation, the US Foreign Sovereign Immunities Act should be amended to provide that only bonds with enhanced CACs will be subject to suit and enforcement in the US courts.
Topic:
Debt, Legal Theory, Credit, and Global Bond Market
Political Geography:
United States and North America

5. The DACA Era and the Continuous Legalization Work of the US Immigrant-Serving Community

Author:
Donald Kerwin, Roberto Suro, Tess Thorman, and Daniela Alulema
Publication Date:
02-2017
Content Type:
Working Paper
Institution:
Center for Migration Studies of New York
Abstract:
In June 2016, the Center for Migration Studies of New York (CMS), with support from the Open Society Foundation’s Emma Lazarus Fund II (OSF / ELF II), initiated a study on the work of non- governmental and community-based organizations (NGOs and CBOs) and their public and private partners to build capacity and to prepare to implement a large legalization program. Over a three-month period, the CMS team interviewed more than 40 agencies and 66 individuals, and intensively analyzed the work of five communities on the Deferred Action for Childhood Arrivals (DACA) program, expanded DACA (known as DACA-plus), and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The study assessed the progress of the NGO/ CBO community in building capacity to promote maximum participation in DACA, to enlist DACA beneficiaries in service, advocacy and community organizing work, and to prepare for a future large-scale legalization program. The study covers the period from DACA’s inception in 2012 to the eve of the presidential election. The prospects for any kind of legalization in the short term have darkened with the election of Donald J. Trump, and the prospects for widespread and potentially draconian enforcement actions have heightened. Although this project was commissioned, conceived, and executed with a legalization program in mind, its findings on the capacity of the immigrant-serving sector remain timely and relevant. This report presents a narrative of how the sector developed over the past four years and assesses its capabilities. As such, it presents a valuable catalogue of assets as the sector considers how it will respond to the challenges ahead. Building greater capacity to serve immigrant communities has become an even more urgent task since the presidential election. Recommendations formulated for a potential legalization program can serve as a starting point for the development of strategies to contend with the Trump administration’s immigration and refugee policies.
Topic:
Immigration, Legal Theory, Humanitarian Crisis, and DACA
Political Geography:
United States, Central America, and North America

6. DECOLONIZATION IN THE CONSTITUTIONAL SYSTEM: INDIGENOUS RIGHTS AND LEGAL PLURALISM, A COMPARATIVE STUDY BETWEEN BOLIVIA, COLOMBIA, AND ECUADOR

Author:
Sergio Miranda Hayes
Publication Date:
05-2017
Content Type:
Working Paper
Institution:
The New School Graduate Program in International Affairs
Abstract:
In the academic world, scientific literature comes mainly from the western part of the globe. Ramón Grossfoguel believes that knowledge is determined by power relations in the "post-colonial" era (Grossfoguel, 2002: 16). This means that Western powers dominate the academic world. In constitutional law, this is not the exception. However, while we can accept that it is true that many constitutional provisions, doctrine, jurisprudence and theories of Western constitutional law have influenced Latin American countries, most of these countries have also developed their own constitutional systems that have specific and new features, whose unique identity differentiates them from other systems in the world. In this paper, I will try to study the special features that Bolivia, Ecuador, and Colombia have in the recognition of indigenous rights and legal pluralism, whose discursive axis entails a “decolonizing” spirit which is the retrieval of their own institutions against the trends of hegemonic governance of the western culture as I will explain later. Latin America has faced numerous problems concerning social differentiation. In the opinion of one of the most cited authors in Latin American constitutional law, Raquel Yrigoyen, the disadvantaged were left behind from the social, economic and political issues through legal measures created by people of a favored minority, in order to maintain privileges (Yrigoyen, 2011: 139). In the case of Latin America, many of the disadvantaged match to be those survivors of the brutal Spanish conquest; the native Indians. I have chosen these three countries since they have a significant indigenous population; more than 36.6 million indigenous people in the region. In Bolivia, the number rises to 4,115,222 natives, in Ecuador 1018176,and in Colombia 1392623. (World Bank, 2014: 24-25) The Constitutions of Colombia (1991), Ecuador (2008) and Bolivia (2009) reflect the new “decolonizing” ideology; Colombia through its jurisprudence, on the one hand, and Bolivia and Ecuador, proclaiming themselves "Plurinational”countries on the other. All made great strides in recognizing indigenous rights and, consequently, in gaining their social inclusion. (Gargarella, 2014: 175) Constitutional systems are a product of history and the struggle of peoples. In these cases, the effort to include indigenous peoples in the economic, political and social spheres resulted in these new constitutional models which can be understood through a comparative study.By understanding this, advantages and disadvantages of each country to improve social inclusion of indigenous peoples in all the mentioned spheres can be found. In the first title, I will talk about the meaning of legal pluralism. In the second, I will discussthe new models of statewhich are conditioned by legal pluralism and indigenous rights. In the third, I will address indigenous autonomies and jurisdictions that are the subject of our study. And in the remaining two titles, I will discuss the most distinctive features, and rights arising from the recognition of this unique legal pluralism. All this with the purpose of exposing the new constitutional spirit of "decolonization" of these countries.
Topic:
Human Rights, Post Colonialism, Legal Theory, Colonialism, Decolonization, and Economic Inequality
Political Geography:
United States, Colombia, South America, Latin America, North America, Ecuador, and Bolivia

7. Are U.S. Drone Strikes Legal?

Author:
Kate Martin
Publication Date:
04-2016
Content Type:
Working Paper
Institution:
Center for American Progress - CAP
Abstract:
There has been much controversy and criticism about drone strikes conducted by the United States, especially those that have targeted Al Qaeda operatives outside Afghanistan in Yemen, Somalia, and the border regions of Pakistan. Many questions have surfaced about the effectiveness of using drone strikes. There is also a widespread perception that strikes have killed many civilians and that they are illegal. The Obama administration recently promised to release information about the number of civilians killed, as well as its policy guidance governing drone strikes outside Afghanistan. However, this new information is unlikely to directly address the question of what legal framework governs such drone strikes. In fact, the Obama administration has never been completely clear about its views on the legal basis for the drone program. But an understanding of the legal framework is necessary to evaluate the new information and the legality of the drone program.
Topic:
Military Strategy, Military Affairs, Counter-terrorism, Al Qaeda, Drones, and Legal Theory
Political Geography:
United States and North America

8. Gregory Shaffer (ed.). Transnational Legal Ordering and State Change , Terence C. Halliday, Gregory Shaffer (eds). Transnational Legal Orders

Author:
Lars Viellechner
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
The two collections fill a major gap in law and globalization scholarship. In rich detail, they supply empirical material on the current transformation of law that has long been sought after. The studies in the first volume stand out in particular as they employ methods of empirical social research and focus on change in non-Western countries. From this material, other researchers will greatly benefit in the years to come. At the same time, the two volumes add a highly convincing conceptual approach to the field. Indeed, their guiding category of the transnational is very promising in contrast to many others proposed for similar purposes. As the editors properly assert, it best expresses that most patterns of order neither reach out globally nor circumvent the state. Indeed, the recursive interaction of different levels of order appears to be one of the dominating modes of law production today, which is well captured by the term. Nevertheless, some obscurity and doubt about the conceptions of transnational legal ordering and order remain.
Topic:
Globalization, International Law, Sociology, and Legal Theory
Political Geography:
Europe, Asia, and North America

9. General Principles Regarding the Legal Validity of RUD

Author:
Eric Chung
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This paper examines the legal validity of reservations, understandings, and declarations (RUDs) in both U.S. and international courts. The analysis is based on 46 U.S. cases discussing RUDs as a general category and 26 U.S. cases discussing interpretative understandings and declarations, out of approximately 650 reviewed cases. The analysis is also based on 13 cases from international courts out of approximately 300 reviewed cases, including cases from the International Court of Justice (ICJ), the United Nations Convention on the Law of the Sea (UNCLOS) tribunal and arbitral bodies, the European Court of Human Rights, and the Inter- American Court of Human Rights. In the U.S. cases, RUDs are nearly always recognized as valid. For example, non-self- execution reservations in the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR) are usually treated as legally controlling. The same is true for the reservation to the ICCPR that reserves the right to use capital punishment on juveniles despite treaty prohibitions, as well as interpretative understandings and declarations defining specific terms used in the CAT. U.S. courts have only questioned the validity of RUDs when they were not properly communicated to other state parties, did not support a contrary interpretation, or focused on issues of wholly domestic concern (although the only case on this point was vacated and is not precedential). In addition, individual circuit judges, writing in dissent, have examined whether RUDs violate the separation of powers principle or are inconsistent with the treaty language and international law. With few exceptions, international courts also usually defer to RUDs. The ICJ has indicated that it can invalidate a reservation as incompatible with the object and purpose of a treaty pursuant to Article 19 of the Vienna Convention on the Law of the Treaties. Yet the ICJ has only invalidated a RUD when it determined that a reservation was in fact an interpretative declaration (as opposed to a reservation modifying the state’s legal obligations under the treaty). This has been particularly important in cases where the treaty in question prohibits reservations, such as the UNCLOS. Rules stipulated by a treaty also shape how other courts review RUDs. The European Court of Human Rights, for instance, applies treaty rules to invalidate RUDs that are of a general character or fail to include a statement of the law concerned. Following a number of practices can reduce a RUD’s vulnerability to invalidation in U.S. and international courts. For U.S. courts, a RUD is extremely unlikely to be questioned if it is documented clearly at the time of ratification and communicated to all treaty parties at the time of ratification. For international courts, a RUD is unlikely to be questioned if, in addition to the above factors, it is not counter to the “object and purpose” of a treaty, it is not objected to by other parties, and it is not a reservation masquerading as an interpretive declaration in a situation where reservations are prohibited by the relevant treaty.
Topic:
Human Rights, Law, Legal Theory, and Courts
Political Geography:
United States of America and North America

10. EU Privacy Regulation: Implications for U.S. and EI Law Enforcement

Author:
Carlton Forbes and Jacob Victor
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In January 2012, the European Commission released drafts of two new pieces of legislation that would provide more stringent and more uniform regulation to the processing of electronic data relating to EU citizens. The proposed General Data Protection Regulation would govern the processing of data for general purposes, while the proposed Criminal Justice Directive would govern data processed in the specific context of criminal investigations. The Data Protection Regulation has proven controversial because of the significant number of requirements it imposes on private data processors, including requirements that the processor notify a consumer when her data is shared with a third party, and requirements that processors respect a number of new individual rights, such as the right of a consumer to request that her data be deleted (a.k.a. “the right to be forgotten”). Furthermore, the Regulation would mandate that many non-EU corporations would need to comply with its requirements when processing the data of EU citizens, or face harsh penalties. This memo summarizes the existing EU data protection regime, analyzes the changes proposed by the new Data Protection Regulation and Criminal Justice Directive, and explores the implications of this new legislation for U.S. criminal and national security investigations. We arrive at three main conclusions
Topic:
Law Enforcement, Law, European Union, Regulation, and Legal Theory
Political Geography:
Europe, North America, and United States of America