Choice of law and the home-court advantage: evidence

This paper tests three separate hypotheses about inherent biasesin the application of modern choice of law rules: (1) Brilmayer's1980 hypothesis that such rules camouflage 'pro-resident, pro-forum-law,pro-recovery' biases, (2) Borchers's 1992 hypothesis that courtsdo not consistently apply the principles of the choice of lawrule they claim to be applying, and (3) an economic hypothesis,presented in the paper, that only a 'pro-forum-law' bias isunambiguously consistent with economic efficiency, simply becauseit conserves the resources of the court and bar in the forumstate. I find relatively strong support for the 'pro-recovery'bias of courts, weaker support for 'pro-forum-law' bias, andreject the 'pro-resident' bias. If anything, states retainingthe rigid choice of law rules are more likely to favor theirresidents. Moreover, I reject Borchers's claim that courts donot take the modern approaches seriously. Indeed, in general,they follow Borchers's own predictions.     

The prosecutor and human rights – from the general to the particular

It is not unusual that one or all parties commit a genuine mistake when making contracts. While there is the strict general duty under the law to respect agreements, there equally exists the duty for courts and tribunals to be fair and to render commercial justice in the factual matrix of cases before them. In national legal systems and transnational law regimes, rescission for mistake on economically efficient and just terms is embedded in contractual obligations. The Solle v Butcher (1950) doctrine, which represented the English law approach, was rejected in The Great Peace (2002). Potential conflicts and crises now exist in commercial relations and international dispute resolution when ‘English law’ is the applicable law. This extends to jurisdictions where English decisions are highly persuasive. This article examines the correctness and effect of The Great Peace decision on the doctrine of equitable rescission for genuine mistake as propounded in Solle v Butcher, and possible clarifications needed after the complications brought by The Great Peace. It analyses the conceptual importance of the remedy of equitable rescission for mistake in commercial transactions, and identifies serious substantive errors of law by The Great Peace court. Finally, it provides other effective, fair and efficient legal methods that remain available to avoid the weaknesses of the decisions.     

Mitigating the Harshness of FCPA Enforcement Through a Qualifying Good‐Faith Compliance Defense

In recent years, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have enforced the Foreign Corrupt Practices Act (FCPA) with increasing rigor. These zealous enforcement practices have been criticized for putting excessive pressure on companies to settle, often through nonprosecution or deferred prosecution agreements. The resulting proliferation of such settlements has created a dearth of case law interpreting the statute, resulting in legal ambiguity that reinforces pressures on companies to continue to settle rather than litigate, as uncertainty of the law adds to risk. This dynamic is exacerbated by the broad vicarious liability that firms face for the wrongdoing of individual actors. Given the need for government to enlist business as a partner in any effective battle against global corruption, the current highly adversarial relationship between enforcement agencies and firms is unreasonable and counterproductive. The law and its enforcement agencies should go further in providing incentives for businesses to develop and implement strong good‐faith FCPA compliance programs. They should establish standards for rigorous compliance programs that would provide qualifying companies with a defense against entity liability for the corrupt behavior of individuals. Creation of a qualifying good‐faith compliance program defense would help to prevent future FCPA violations, to recruit companies as partners in fighting corruption, to encourage ethics‐oriented corporate cultures, and to encourage upstanding firms to do business in regimes where rectitude is most needed.     

(Non‐)Enforcement of Directors’ Duties in Corporate Groups: Goh Chan Peng v Beyonics Technology Ltd

Corporate groups, a ubiquitous feature of modern business, pose formidable challenges for common law courts relying on traditional corporate law doctrine. Arising out of a corporate group's recent bid to recover millions of dollars in lost profits from a former director and CEO who had diverted a core business, Goh Chan Peng v Beyonics Technology Ltd raised thorny issues of separate legal entity doctrine, single economic unit theory, and reflective loss shared by common law legal systems. Despite finding that the defendant had breached his duties to the ultimate holding company, the Singapore Court of Appeal absolved the faithless director from most of his liabilities, relying on limited domestic precedent to the exclusion of a rich body of Commonwealth jurisprudence – including the House of Lords’ landmark Johnson v Gore Wood decision. This note explores the paths not taken by the court, and highlights the pitfalls of a narrow, autochthonous approach to problems of common law doctrine.     

Mavericks or misconstruction? A reply to Campbell and Allan

In a jurisdiction without a codified constitution clearly demarcating the role of the courts, and given the centrality of the principle of parliamentary sovereignty to the United Kingdom's constitutional framework, criticism of the courts for overstepping the mark – particularly in politically contentious cases – is par for the course. In their 2019 article, Professors David Campbell and James Allan offer a criticism of the Supreme Court for what they describe as its surreptitious creation of judicial supremacy at the expense of parliamentary sovereignty. In support of their claim, the authors examine two particularly significant judgments: R (Miller and another) v. Secretary of State for Exiting the European Union and Re Northern Ireland Human Rights Commission's Application for Judicial Review. This reply discusses several problematic aspects of the authors’ critique of those judgments, demonstrating that, contrary to the authors’ claims, these cases do not provide evidence of a surreptitious attempt by the Supreme Court to expand its power.     

New Battles and Battlegrounds for Mandatory Arbitration After Epic Systems,New Prime,and Lamps Plus

The Supreme Court's recent decisions interpreting the Federal Arbitration Act (FAA) in the employment context generally prioritize arbitration over workers’ labor law rights. The majority in Epic Systems Corporation v. Lewis upheld mandatory individual employment arbitration agreements despite their conflict with the labor law right to act in concert. The same majority in Lamps Plus, Inc. v. Varela rejected a state law interpretation of a contract provision to find that parties to an employment contract intend individual arbitration absent reference to group arbitration. A unanimous Court in New Prime v. Oliveira interpreted the FAA to include independent contractors under the transportation worker exemption, reinvigorating the battle over what it means to be engaged in interstate commerce to qualify for the exemption. These decisions resolved some disputes about the breadth of the FAA, but other questions remain. In the wake of Epic Systems and Lamps Plus, state courts and legislatures are testing the boundaries of the FAA's saving clause, with limited success. Confidentiality provisions, frequently associated with arbitration agreements, may unlawfully interfere with employees’ federal labor law rights. This article recommends that Congress amend the FAA to address these issues by excluding all workers engaged in interstate commerce, not just transportation workers, because the Court has strayed far from the original intent of the Act—to enforce commercial agreements in which the parties had equal bargaining power. State legislation also should provide guidance on what makes arbitration voluntary and fair, and provide a choice to employees on collective action, forum, and confidentiality.     

How Bureaucracies Listen to Courts: Bureaucratized Calculations and European Law

The European Court of Justice, and courts in general, were key actors in the creation of the European Union (EU). However, they cannot change major policy without political supporters to lobby and litigate for implementation. We argue that part of the resolution of this apparent paradox comes from complementing existing work on the activities of EU courts and litigants with a focus on a third actor: implementing bureaucracies, whose effect on law and politics has not been a focus of studies of EU legal development. Their calculations about whether to pay attention, lobby, and comply shape the impact of the law. Those calculations are variable and patterned; when and how bureaucracies listen to courts varies in predictable ways. We find evidence for this proposition in the case of EU health care services law, both in the secondary literature and in empirical studies of France and Spain.     

The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Abstract:  One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.     

Efficient,Fair, and Incomprehensible: How the State “Sells” Its Judiciary

Socio‐legal scholars often approach dispute resolution from the perspective of the disputants, emphasizing how the resources on each side shape the course of conflict. We suggest a different, “supply‐side,” perspective. Focusing on the state's efforts to establish centralized courts in place of local justice systems, we consider the strategies that a supplier of dispute resolving services uses to attract disputes for resolution. We argue that state actors often attempt to “sell” centralized courts to potential litigants by insisting that the state's services are more efficient and fair than local courts operating outside direct state control. Moreover, we argue that state actors also invest significant energy in claiming that the local courts are incomprehensible. Thus, in its efforts to introduce and advance centralized courts, the state argues not only that it offers the best version of what the citizenry wants, but also that it is impossible to conceive that people would want something other than what the state offers. We illustrate our argument and explain its significance by examining judicial reform in New York, where there has been a decades‐long effort to displace local justice systems.     

Gag orders: Shields or swords in the constitutional conflict between fair trial and free press?

In 1976, in Nebraska Press Association v. Stuart, the Supreme Court characterized gag orders as the “most serious and least tolerable infringement on First Amendment rights.”; Yet courts impose gag orders that restrict media coverage of courts and trial participants. Many groups believe the use of gag orders is increasing. However, no previous study has attempted to quantify the frequency of gag orders or to explore judicial attitudes about the issuance of such orders. This analysis of the case law and exploratory survey of judges in Florida suggests that courts issue gag orders to protect fair trials, participant safety and privacy, and the sanctity of the courtroom.

This article also suggests that conflict over gag orders arises because judges disagree about the core meanings of the First and Sixth Amendments. This research indicates that judges' individual interpretations of the Constitution color their determinations of whether indirect gags on trial participants, rather than on the media, are impermissible assaults on the First Amendment or are permissible shields of fair trials. Judges tend to be either First Amendment apostles or Sixth Amendment followers, and Sixth Amendment judges are more likely to impose and uphold gag orders. The authors suggest that this schism is unlikely to be resolved without guidance from the Supreme Court.     

When arbitration clause and oppression claim collide

The question regarding the position of arbitration clauses within the context of shareholders’ protection under company law rules has been dealt with in a decision from the United Kingdom, Exeter, which upheld the inalienable right of the members to bring an oppression claim despite the presence of an arbitration agreement. The issue was recently revisited in several common law jurisdictions – United Kingdom, Malaysia, Singapore and Hong Kong with mixed results. The article discusses this development to clarify the scope, breadth and limits of the arbitration clause within company law.     

Between Immigration and Policing: Cross Recognition

Abstract: This article looks at the development of the UK's policies towards asylum‐seekers who are to be returned to some country other than the one where they fear persecution (its ‘safe third country’ policy). The Dublin Convention of 1990 addressed some of the problems which this policy created, but left others unresolved. Domestic legislation has progressively reduced the opportunities for challenging safe third‐country removals, especially to an EU state. The incorporation of the European Convention on Human Rights into UK law has generated new possibilities for challenging safe third‐country decisions where removal might damage physical or mental health. Articles 3 and 8 have been invoked in particular. The Dublin machinery established ‘rules’ to decide which member state was responsible for considering the asylum claim and the procedure to be followed. The article examines why the UK courts have said that these provisions are not justiciable in the English courts. Finally the article considers whether the experience with Dublin provides any useful guidance as to the approach that will be taken to European arrest warrants and extradition requests.     

The Russian Far East’s illegal timber trade: an organized crime?

Transnational environmental crime is a global problem encompassing not only criminal violations of the law, but harms against the environment and the people reliant upon it as a natural resource. Grounded in the green criminological theory of eco-global criminology, this paper explores the transnational environmental crime of the illegal timber trade in the Russian Far East unpicking the threats to ecological well-being and the global nature and impacts of this crime. In researching transnational environmental crime, it is crucial to uncover the distinct local and regional variations of the forces at play; for this paper that means analyzing the role of organized crime and corruption in Russia’s timber black market. This information was obtained by using the current literature and interviews with Russian and international experts in order to uncover the role of these actors in the harvesting, smuggling and selling of timber. From this exploration, a structure of the illegal timber trade in this region is proposed including at which points along the black market chain organized crime and/or corruption are involved. Additionally, from an eco-global criminological foundation this paper analyzes the consequences to Russia’s people, its environment and the global community if the illegal timber trade is to continue in its current state.     

Adventures in the Copyright Zone: The Puzzling Absence of Independent First Amendment Defenses in Contemporary Copyright Disputes

Copyright law, for most of its history, has been exempt from the requirements of the First Amendment free speech and press clauses. As copyright law has expanded in scope and duration, scholars have begun to raise questions about its First Amendment immunity. This essay examines the fundamental conflict between copyright doctrine and the First Amendment. Although courts have been quick to dismiss the application of free speech standards to copyright disputes, the proper relationship between these two areas of the law is less than clear. The essay explores the current understanding of the intersection of free speech and copyright, largely derived from the work of Professor Melville Nimmer. It analyzes the difficulties with two specific doctrines by which the Supreme Court of the United States has justified copyright's free speech immunity – the idea/expression dichotomy and the fair use doctrine – then concludes by offering a new approach to applying the First Amendment to copyright law in a more robust manner.     

The Incidence and Structure of Conflict on the U.S. Court of Appeals for the Federal Circuit

In 1982, Congress established the Court of Appeals for the Federal Circuit, a specialized court, with the objective of reducing judicial conflict and harmonizing circuit law in specific policy areas of special complexity. This article examines the incidence and determinants of judicial conflict on the U.S. courts of appeals, focusing specifically on the Federal Circuit. Using international trade and customs regulation cases decided during the 1982 to 1995 terms, the analysis reviews three possible explanations of judicial conflict: policy-oriented, sociolegal, and organizational. The analysis shows that conflict appears in 8.4 percent of the trade and customs regulation decisions rendered by the Federal Circuit during the period of study. The policy direction of Federal Circuit decisions and the court's hierarchical relationship with lower specialized courts provide the strongest explanation for the emergence of conflict on the court. Organizational factors such as panel composition evinced rather anemic explanatory capacity. The results raise an important functional similarity between the Federal Circuit and the generalist courts of appeals. Contrary to the laments of legal practitioners that conflict on the Federal Circuit is excessive relative to conflict on the generalist circuit courts, this analysis finds little support for that claim. Rather, the level of overt conflict on the court is actually low and corroborates conflict levels that have been reported for other U.S. courts of appeals.     

The “Production” of Corruption in China's Courts: Judicial Politics and Decision Making in a One‐Party State

Despite its rampant presence, judicial corruption in China has often been regarded as the idiosyncratically deviant behavior of a few black sheep eluding prescribed judicial conduct. This entrenched assumption has both discouraged in‐depth investigation of the phenomenon of judicial corruption and inhibited proper understanding of the functioning of China's courts. This article, based on an empirically grounded examination of the processing of court rulings tainted by corruption, showed that judicial corruption in China is an institutionalized activity systemically inherent in the particular decision‐making mechanism guided by the Chinese Communist Party's instrumental rule‐by‐law ideal. In investigating what has contributed to the institutionalization of judicial corruption, the interplay between law and party politics in China's courts was also examined. The findings, therefore, also shed light on behind‐the‐courtroom judicial activities and on the enduring perplexity of the gap between the law in the book and the law in action.     

Labor Regulation,Corporate Governance,and Legal Origin: A Case of Institutional Complementarity?

We explore the influential claim that "legal origin"—the historical origin of a given national legal system in the common law or civil law—accounts for a significant degree of cross-national diversity in economic regulation and development. We show that the claim is undermined by problems in index construction and by a misreading of the implications of the common law/civil law divide for the respective roles of courts and legislatures in law making. We argue that a critical factor, instead, was the timing of industrialization in relation to the emergence of legal institutions associated with the modern business enterprise (the employment relationship and the joint stock company). We also show how distinctive "legal cultures" of the common law and civil law have played a part in setting national systems on separate pathways to economic development.     

Preventive Justice and the Presumption of Innocence

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted.     

The Influence of Administrative Law Judge and Political Appointee Decisions on Appellate Courts in National Labor Relations Board Cases

Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower‐level decision making over appellate court decision making in the area of administrative law.