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Begin New Search Topic Legal Theory Publication Year within 25 Years

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. Challenging the Legal Ideology of the State: Cause Lawyering and Social Movements in Egypt

Author:
Ahmed Ezzat
Publication Date:
05-2019
Content Type:
Working Paper
Institution:
Arab Reform Initiative (ARI)
Abstract:
Egyptian cause lawyers have constituted a strong socio-professional group and successfully used “strategic litigation” to challenge the state’s policies and counter its conservative narratives. With President El-Sissi in power and the security grip over legal institutions and courts, doubts were raised as to whether it still makes sense to go to court against the state over matters of rights and freedoms. By reviewing several emblematic cases, the author analyzes the impact of cause lawyering on mobilization and social movements and how it contributed to reshaping the public sphere, as well as the challenges the cause lawyers’ movement faces under El-Sissi.
Topic:
Human Rights, United Nations, Social Movement, and Legal Theory
Political Geography:
Africa, North Africa, Egypt, and Mediterranean

5. The Way Forward for Legal Education Reform in Ghana

Author:
S. Kwaku Asare
Publication Date:
10-2019
Content Type:
Policy Brief
Institution:
Ghana Center for Democratic Development
Abstract:
Abstract
Topic:
Education, Law, and Legal Theory
Political Geography:
Africa and Ghana

6. American Gothic: How Chicago Economics Distorts “Consumer Welfare” in Antitrust

Author:
Mark Glick
Publication Date:
07-2019
Content Type:
Working Paper
Institution:
Institute for New Economic Thinking (INET)
Abstract:
Since the publication of Robert Bork’s The Antitrust Paradox, lawyers, judges, and many economists have defended “Consumer welfare” (CW) as a standard for decisions about antitrust goals and enforcement priorities. This paper argues that the CW is actually an empty concept and is an inappropriate goal for antitrust. Welfare economists concede that there is no credible measurable link between price and output and human well-being. This means that the concept of CW does not legitimate limited antitrust enforcement, nor does it justify the exclusion of other antitrust goals that require more active enforcement practices. This paper contends that antitrust policy is not welfare based at all, and that if it were, antitrust policy and enforcement would differ significantly from the Chicago School vision. Without the fiction that economists can establish that in the short run lower price and higher output measurably increases welfare more than other goals, recent defenses of the CW standard resolve down to arguments based on unsupported assumptions.
Topic:
Economics, Law, Legal Theory, Economic Theory, Macroeconomics, Antitrust Law, and Microeconomics
Political Geography:
United States

7. Basis and Implications of the ICC's Ruling Against Myanmar

Author:
Tanushree Nigam
Publication Date:
12-2019
Content Type:
Working Paper
Institution:
Public International Law Policy Group
Abstract:
n a major decision, the International Criminal Court ruled on September 6, 2018 that the Court may exercise jurisdiction over the crime of alleged deportation of the Rohingyas from Myanmar to Bangladesh. The Pre-Trial Chamber accepted the OTP’s argument that the Court may exercise jurisdiction over the crime of cross border deportation of Rohingyas even though the alleged crime had been committed in Myanmar which is not a State Party. The Pre-Trial Chamber stated that this could be done as some “elements of the crime” had taken place in the territory of Bangladesh, which is a State Party. This judgment makes a towering statement that ICC’s jurisdiction is objective rather than subjective in nature. In this post, I discuss the basis and implications of the Chamber’s findings.
Topic:
Legal Theory, International Criminal Court (ICC), Humanitarian Crisis, and Deportation
Political Geography:
Africa, Asia, South Korea, North Korea, and Myanmar

8. Costs and Benefits of Investment Treaties: Practical Considerations for States

Author:
Lisa Sachs, Lise Johnson, Brooke Güven, and Jesse Coleman
Publication Date:
03-2018
Content Type:
Working Paper
Institution:
Columbia Center on Sustainable Investment
Abstract:
This paper analyzes the expected benefits of investment treaties, including: increased inward investment, increased outward investment, and depoliticization of investment disputes. It then considers evidence of the costs of investment treaties, including: litigation, liability, reputational cost, reduced policy space, distorted power dynamics, reduced role for domestic law-making, and uncertainty in the law. The authors set forth practical steps that states can take relating to both existing treaties as well as future treaties with an objective of increasing desired benefits and decreasing unexpected and high costs of investment treaties.
Topic:
Treaties and Agreements, Law, Legal Theory, and Investment
Political Geography:
Global Focus

9. 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

10. Exploring the Boundaries of Conditionality in the EU

Author:
Alexander Mattelaer
Publication Date:
06-2018
Content Type:
Working Paper
Institution:
EGMONT - The Royal Institute for International Relations
Abstract:
Conditionality in the EU comes in many forms: legally codified and enforced by the Court of Justice, or reliant on intergovernmental bargaining and expressed by means of political or economic (dis)incentives. This European Policy Brief explores the boundaries of the conditionality debate, and assesses what varying degrees of conditionality can and cannot achieve. The overarching objective of conditionality is to foster integration and cohesion amongst the peoples of Europe and their Member States. A sound logic of conditionality must therefore set incentives in such a way that their application contributes to this intended outcome. A balanced combination of political, legal and budgetary instruments can help remedy a major lacuna in the Treaties: the effective protection of the rule of law and democracy.
Topic:
Regional Cooperation, European Union, Democracy, Legal Theory, and Integration
Political Geography:
Europe