In the public law area, there is an understanding that judicial decision making is not always objective, that the courts are not constrained by the law and the facts of the case, and that courts are actually policy makers influenced by extraneous factors that have little to do the legal and factual matters of a case. Through a combination of an integrative review of the relevant literature in the public law area and new case studies researched by the author, Barbara Yarnold argues that the public law area has discarded the traditional view of the judiciary as a passive interpreter of the law who truly weigh the facts of each case. She examines political and environmental variables that have been used to explain judicial outcomes and develops an original general theory of public law explaining under what circumstances political variables impact court decisions, and when region, as an environmental variable, is related to judicial outcomes. The central question in this study is When exactly do the law and the facts count? As Yarnold's analyses of the judicial decision field draw variables from political science, economics, psychology, and criminal justice, among other fields, this work also suggests that the public law area is multidisciplinary in nature. The book concludes with a case study examination of interest groups involved in asylum-related appeals and their role in the Sanctuary Movement. Students and scholars of public administration, law and society, and public law will find Yarnold's integration of research and current literature toward a general theory of public law highly provocative and interesting.

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Read the Introduction.

"This collection, with its prominent contributors broad range of topics, cutting-edge research, and thought-provoking discussion, is surely a fine piece of work which will bring the understanding of the Chinese legal system to a deeper level."
--"International Journal of Legal Information"

This volume brings together ten original essays by leading Chinese law experts in the United States and beyond. Employing a variety of perspectives and materials, these writings tackle important issues that range from ancient Chinese legal history to aspects of the contemporary legal process in the People's Republic of China. For example, how was law theorized and practiced during China's Warring States period circa 4th century B.C? What was the role of case precedents in the Qing (1616-1911) judicial process? What role has law played in China's on going transformation from central planning to a market economy? Does the current practice of village-level elections foretell a greater and more genuine development of democracy in China? And, given the complexities of its legal tradition, how can one best understand contemporary Chinese law and anticipate the pace and direction of its future development?

The contributors are William P. Alford, Albert H. Chen, Tsung-fu Chen, Donald C. Clarke, Alison W. Conner, R. Randle Edwards, Jamie P. Horsley, William C. Jones, Natalie G. Lichtenstein, and Susan Roosevelt Weld.

This collection of essays is dedicated to Jerome A. Cohen, Professor, New York University Law School, in honor of his pioneering role during the past forty years in American scholarship on law in China.

"Must reading for anyone who seeks a better understanding of the U.S. Supreme Court's role in race relations policy."
--"Choice"

"Beware Those committed to the Supreme Court as the ultimate defender of minority rights should not read Race Against the Court. Through a systematic peeling away of antimajoritarian myth, Spann reveals why the measure of relief the Court grants victims of racial injustice is determined less by the character of harm suffered by blacks than the degree of disadvantage the relief sought will impose on whites. A truly pathbreaking work."
--Derrick Bell

As persuasive as it is bold. Race Against The Court stands as a necessary warning to a generation of progressives who have come to depend on the Supreme Court of the perils of such dependency. It joins with Bruce Ackerman's We, the People and John Brigham's Cult of the Court as the best in contemporary work on the Supreme Court.
--Austin Sarat, William Nelson, Cromwell Professor of Jurisprudence and Political Science, Amherst College

The controversies surrounding the nominations, confirmations, and rejections of recent Supreme Court justices, and the increasingly conservative nature of the Court, have focused attention on the Supreme Court as never before. Although the Supreme Court is commonly understood to be the guardian of minority rights against the tyranny of the majority, Race Against The Court argues that the Court has never successfully performed this function. Rather the actual function of the Court has been to perpetuate the subordination of racial minorities by operating as an undetected agent of majoritarian preferences in the political preferences. In this provocative, controversial, and timely work, Girardeau Spann illustrates how the selection process for Supreme Court justices ensures that they will share the political preferences of the elite majority that runs the nation. Customary safeguards that are designed to protect the judicial process from majoritarian predispositions, Spann contends, cannot successfully insulate judicial decisionmaking from the pervasive societal pressures that exist to discount racial minority interests.

The case most often cited as the icon of Court sensitivity to minority rights, Brown v. Board of Education, has more recently served to lull minorities into believing that efforts at political self-determination are futile, fostering a seductive dependence and overreliance on the Court as the caretaker of minority rights. Race Against The Court demonstrates how the Court has centralized the law of affirmative action in a way that stymies minority efforts for meaningful political and economic gain and how it has legitimated the legal status quo in a way that causes minorities never even to question the inevitability of their subordinate social status.

Spann contends that racial minorities would be better off seeking to advance their interests in the pluralist political process and proposes a novel strategy for minorities to pursue in order to extricate themselves from the seemingly inescapable grasp of Supreme Court protection. Certain to generate lively, heated debate, "Race Against The Court" exposes the veiled majoritarianism of the Supreme Court and the dangers of allowing the Court to formulate our national racial policy.

This book provides a comprehensive study of the standard of 'full protection and security' (FPS) in international investment law. Ever since the Germany-Pakistan BIT of 1959, almost every investment agreement has included an FPS clause. FPS claims refer to the most diverse factual settings, from terrorist attacks to measures concerning concession contracts. Still, the FPS standard has received far less scholarly attention than other obligations under international investment law. Filling that gap, this study examines the evolution of FPS from its medieval roots to the modern age, delimits the scope of FPS in customary international law, and analyzes the relationship between FPS and the concept of due diligence in the law of state responsibility. It additionally explores the interpretation and application of FPS clauses, drawing particular attention to the diverse wording used in investment treaties, the role ascribed to custom, and the interplay between FPS and other treaty-based standards. Besides delivering a detailed analysis of the FPS standard, this book also serves as a guide to the relevant sources, providing an overview of numerous legal instruments, examples of state practice, arbitral decisions, and related academic publications about the standard.

Dominance is an integral aspect of strategy. Strategy, whether in war, sports or business, is about how one can place themselves in a competitive position that gives them an advantage over competitors. If that position can be made so overwhelming by one competitor that others are effectively taken out of effective competition, that competitor is dominant. Dominance wins. The game is over. Everyone else is playing for second place or lower. Creating Dominance describes how successful law firms have gone about dominating their marketplaces - be they a practice area, a city or an industry. The book begins by describing the characteristics that identify a dominant firm and the precise strategies law firms can use to put themselves in a position of dominance.

Lack of access of the poor and middle class to civil courts, suits that benefit only lawyers, litigation tactics devoted to victory rather than truth or justice, and inefficient courts are some of the issues addressed by Judge Gerber in his outspoken critical appraisal of America's legal profession and judiciary. The author suggests practical--and in some cases radical--remedies needed to make the system responsive to the public and to give substance to the ideal of equal justice for all. Gerber's criticisms of the legal profession today are far-reaching, and the self-reflection in which he asks us to engage is difficult, even uncomfortable. But it is a necessary step in the continuing efforts we all must make to ensure that our profession upholds the highest ideals of professional responsibility. Sandra Day O'Connor, Supreme Court of the United States Lack of access of the poor and middle class to civil courts, suits that benefit only lawyers, litigation tactics devoted to victory rather than truth or justice, and inefficient courts are some of the issues addressed by Judge Gerber in his outspoken critical appraisal of America's legal profession and judiciary. The author suggests practical--and in some cases radical--remedies needed to make the system responsive to the public and to give substance to the ideal of equal justice for all. Following an introductory overview of the troubled condition of our legal system, Judge Gerber considers the narrow process by which future lawyers are selected and the financial motivations that commonly inspire them to study law. He next takes a hard look at legal education, noting that the litigation model now in vogue inculcates a mentality of combat and downgrades peacemaking and negotiating skills. In a discussion of bar exams, Judge Gerber points out that these tests measure neither ethics nor competency and fail to provide for specialty licensing, for which he recommends periodic reexamination and peer review. Commenting on the complexity, confusion, delays, and extortionate costs that prevent equal access to justice, the author offers specific suggestions for streamlining court procedures and revamping the court system by managerial and procedural changes. He examines ethical abuse by courtroom litigators, contending that periodic ethical review and specialized training are needed to insure that justice is served. Concluding with a critical analysis of major competing jurisprudential theories, Judge Gerber argues that a return to natural law ideals is needed to reinspire lawyers and judges with a philosophical sense of the foundations of justice. This important new work is particularly relevant for legal educators and professionals and for courses dealing with the legal profession, legal ethics, the judiciary, and the court system.

In June of 1972, the Democratic National Party headquarters in Washington, D.C., was the site of one of the most famous burglaries in U.S. history. The abortive Watergate break-in and subsequent cover-up is reexamined in this book from the unique perspective of the Supreme Court judges, who grappled with its political and legal ramifications. Howard Ball presents the litigation in the U.S. vs. Nixon case from the inside out, analyzing the constitutional issues that faced the court and the way in which the justices worked to resolve conflicts, overcome obstacles, and arrive at an institutional opinion. In recounting the tragedy of Watergate from the viewpoint of the judges, the book makes use of a number of important original sources, including interviews and letters from the justices. Perhaps most important in telling this story, though, are the conference notes and docket sheets of the Court members, especially those of Justices William J. Brennan, Jr., and William O. Douglas. To set the Watergate tapes litigation against the proper background, Ball also examines the role of the federal judiciary in the political system, the crucial concept of judicial review, and the Supreme Court's processes and personnel at the time of the litigation. A selected bibliography and comprehensive index conclude the work. As a unique chronicle of the Watergate scandal, this book will be a valuable resource for courses in American history, legal studies, and the Supreme Court, as well as a significant addition to academic, legal, and public libraries.

The public image of judges has been stuck in a time warp; they are invariably depicted in the media - and derided in public bars up and down the country - as 'privately educated Oxbridge types', usually 'out-of-touch', and more often than not as 'old men'. These and other stereotypes - the judge as a pervert, the judge as a right-wing monster - have dogged the judiciary long since any of them ceased to have any basis in fact. Indeed the limited research that was permitted in the 1960s and 1970s tended to reinforce several of these stereotypes. Moreover, occasional high profile incidents in the courts, elaborated with the help of satirists such as 'Private Eye' and 'Monty Python', have ensured that the 'old white Tory judge' caricature not only survives but has come to be viewed as incontestable. Since the late 1980s the judiciary has changed, largely as a result of the introduction of training and new and more transparent methods of recruitment and appointment. But how much has it changed, and what are the courts like after decades of judicial reform? Given unprecedented access to the whole range of courts - from magistrates' courts to the Supreme Court - Penny Darbyshire spent seven years researching the judges, accompanying them in their daily work, listening to their conversations, observing their handling of cases and the people who come before them, and asking them frank and searching questions about their lives, careers and ambitions. What emerges is without doubt the most revealing and compelling picture of the modern judiciary in England and Wales ever seen. From it we learn that not only do the old stereotypes not hold, but that modern 'baby boomer' judges are more representative of the people they serve and that the reforms are working. But this new book also gives an unvarnished glimpse of the modern courtroom which shows a legal system under stress, lacking resources but facing an ever-increasing caseload. This book will be essential reading for anyone wishing to know about the experience of modern judging, the education, training and professional lives of judges, and the current state of the courts and judiciary in England and Wales.

In his Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford 2004), the American-French scholar Mitchel Lasser has, among other things, tried to re-establish the strengths of the French cassation system. Using Lasser's approach and ideas as a starting point, in this book judges from the French, Belgian and Dutch Cassation Courts reflect on the challenges that their Courts are facing. The book also contains a series of contributions from scholars analyzing the wide range of factors that determine the legitimacy of these courts' decisions. Specific attention is given to the Strasbourg Court of Human Rights that has been so important for the moral legitimacy of the European legal order, and to courts in post-communist systems, which face many similar challenges and are even under greater pressure to modernize. The book is a multidisciplinary contribution to the international debate about the legitimacy of the highest courts' rulings as well as the concept of judicial leadership and offers a new perspective in the USA versus Europe debate. It is recommended reading for academics, judges, policymakers, political scientists and students. Nick Huls is a Professor of socio-legal studies at the Faculty of Law of the Erasmus University Rotterdam and Leiden University's Faculty of Law, The Netherlands. Maurice Adams is a Professor of law at Tilburg University, The Netherlands, and part-time Professor of comparative law at Antwerp University in Belgium. JaccoBomhoff is a Lecturer in law at the Law Department of the London School of Economics in the UK.

This collection of original essays surveys the evolution of sentencing policies and practices in Western countries over the past twenty-five years. Contributors address plea-bargaining, community service, electronic monitoring, standards of use of incarceration, and legal perspectives on sentencing policy developments, among other topics. Sentencing and Sanctions in Western Countries provides a range of scholars' and students' excellent cross-national knowledge of sentencing laws and practices, when and why they have changed over time, and with what effects.

This is the first major treatment of the conflict of laws within the UK, a subject often dealt with only incidentally in the main texts on private international law. In particular, the book examines the effect of the UK's changing constitutional arrangements on questions of jurisdiction, choice of law and issues of recognition and enforcement which arise within the UK.
The book offers practical guidance on the applicable rules in intra-UK conflicts situations with sections devoted to forum shopping within the UK, and other procedural matters. A chapter is also included on the impact of EU legislation on intra-UK conflicts, concluding with a discussion on how "Europeanization" might affect the conflict of laws in the UK. There is also coverage of how public policy functions in the conflict of laws. The book's approach to the treatment of intra-UK conflicts is enhanced by a comparative analysis of the recent response of Canada and Australia to, respectively, interprovincial and interstate conflicts.

Lopeman examines the impact advocacy of intentional judicial activism by a justice of a state supreme court can have on establishing the court as a policy maker. He examines the attitudinal model and the judicial role model of decision making and concludes that, while the attitudinal model might describe the decision-making process in the U.S. Supreme Court, the judicial role model better describes decision making in state supreme courts. This judicial role model allows the activist to transform a court into a policy maker.

The traditions, recent history, and biographies of recent justices of the Indiana, West Virginia, and Ohio courts are examined to establish a significant relationship between the presence of an activist advocate justice and active policy making by the courts. These courts' decisions in cases with policy making potential are contrasted with decisions in similar cases of three state supreme courts that did not have an advocate justice. Lopeman argues that the presence of an activist advocate explains a court's transformation to active policy making, and that other apparent explanations are insufficient. He emphasizes that the motives of an activist advocate are likely to determine the permanence of policy making in the court. This volume is an important resource for political scientists, legal scholars, and other researchers involved with judicial decision making, state politics, and state constitutional law.

It has been many years since O. J. Simpson walked free from a downtown Los Angeles courtroom. For many, it was the demolition of the fundamental principle of right and wrong, and many debated the deficiencies of the American justice system. Since then, we have witnessed the Casey Anthony case, and others, that remind us of issues unaddressed and questions unanswered. In Fixing the Engine of Justice, author David Tunno presents the symptoms of a defective jury system and offers comprehensive, intelligent, and thought-provoking solutions. Tunno, a trial consultant for more than twenty years, has studied and researched key trials and has gleaned stories from his personal experiences to show a system beset with representation issues, incompetence, bias, misconduct, and lack of support and public perception based on misconceptions. He analyzes the flaws in the jury selection process, its lack of effectiveness, and the ways in which it contributes to the delivery of justice. Often humorous and irreverent, Fixing the Engine of Justice offers a diagnosis of the problems and a list of needed repairs to the American legal system. With the prime focus on juries, Tunno also takes aim at judges, attorneys, and other issues relevant to the health of the system.

This book provides the first in-depth analysis of a wide variety of legal problems and policy issues that directly involve the judiciary, together with a discussion of the historical context of these issues and their current implications. The methods of nominating, appointing, and electing justices, and the provisions and prohibitions governing judicial compensation, are first examined. Grounds for judicial disqualification are presented, and the regulation of political activity on the part of judges and judicial candidates is considered. Three chapters relating to judicial discipline deal with removal and other disciplinary actions, as well as the criminal and civil liability of judges. The authors focus on both the grounds for imposing discipline and the various methods employed to evaluate and punish alleged misconduct.

This book presents a hotly debated issue concerning the ownership of trust property in China. The book describes various conventional interpretations of Chinese Trust Law submitted by legal scholars and compares diverse approaches regarding the ownership of trust property provided by jurisdictions globally. The book does not directly answer the question "Who is the owner of trust property in China?" Instead, using a social capital perspective, it develops a more practical perspective to explain why Chinese trust business has grown rapidly even in lack of legal certainty regarding the location of ownership of trust property. The book also further predicts under what conditions is the time ripe to clarify the location of the ownership of trust property in China. By employing those sociological concepts often used to depict and analyze society, this book outlines the structure of the Chinese trust business and related social relations in different stages, i.e., the current rapid development stage, and the possible transitional stage in the near future. The focus is on how the social network structure affects the behavior of actors (such as the settlor, the trustee, and the beneficiaries, and/or their potential candidates) within the relevant section of Chinese society. The book provides readers with an intensive analysis of the impacts of historical, cultural, and social elements on the legislation and development of trust law in China. It will appeal both to lawyers interested in the Chinese trust business and to comparative law researchers and social scientists.

The effect of modern and communication technology on civil procedure first appeared on the agenda of the conference organized by the International Association of Procedural Law in 1999, verifying Lord Woolf's statement from the 90's, that "IT will not only assist in streamlining and improving our existing systems and process; it is also likely, in due course, itself to be catalyst for radical change as well...."

At the conference in Pecs in the autumn of 2010 participants from three continents and twenty-five countries examined all aspects of the impact of modern information technology on civil procedure beginning with the electronic submission of the application, ranging from electronic service of documents and electronic means of proof supported by modern information technology. In addition to the practical issues they discussed the possible impact of electronic procedures on traditional principles of civil procedure. The conference book contains seven main reports and eleven correferates, the foreword was written by Prof. Peter Gottwald, the President of the International Association of Procedural Law.

This study proposes a multilateralist method of choice of law in order to alleviate the great disarray that currently exists in American choice law. In the early 20th century, there was a fairly-uniform multilateralist method of choice law. In the 1920s and 30s, however, scholars adn courts began to reject this method. Viewed as too mechanical the method sometimes resulted in the choice of law of a state with only a tenuous connection to the controversy. Currently, state courts use four different approached to choice law with numerous material variations. This study rejects these approaches on normative, constitutional, and practical grounds. Instead, it advocates that courts adopt a multilateralist approach to choice of law that is forum- and content-neutral and that respects the rights of both individuals and states. The study also argues that such an approach should satisfy a constitutional standard that requires a court not choose one state's law when another state has a significantly closer connection to controversy.

The proposed method consists of two parts. The first part determines the states that have created legal relations applying to the dispute. When more than one state has created a legal realtions applying to the dispute. When more than one state has created a legal relation that applies to the controversy, the second part adopts the law of the state that had the closest connection. The study then applies the suggested method to numerous choice of law problems.

Although the right to trial by jury is enshrined in the U.S. Constitution, in recent years both criminal and civil juries have been criticized as incompetent, biased, and irresponsible. For example, the O.J. Simpson criminal jury's verdict produced a racial divide in opinions about that trial. And many Americans still hold strong views about the jury that awarded millions of dollars to a woman who spilled a cup of McDonald's coffee on herself. It's said that there are "judicial hellholes" where local juries provide "jackpot justice" in medical malpractice and product liability cases with corporate defendants. Are these claims valid? This monumental and comprehensive volume reviews over fifty years of empirical research on civil and criminal juries and returns a verdict that strongly supports the jury system. Rather than relying on anecdotes, Vidmar and Hans-renowned scholars of the jury system-place the jury system in its historical and contemporary context, giving the stories behind important trials while providing fact-based answers to critical questions. How do juries make decisions and how do their verdicts compare to those of trial judges and technical experts? What roles do jury consultants play in influencing trial outcomes? Can juries understand complex expert testimony? Under which circumstances do capital juries decide to sentence a defendant to die? Are juries biased against doctors and big business? Should juries be allowed to give punitive damages? How do juries respond to the insanity defense? Do jurors ignore the law? Finally, the authors consider various suggestions for improving the way that juries are asked to carry out their duties. After briefly comparing the American jury to its counterparts in other nations, they conclude that our jury system, despite occasional problems, is, on balance, fair and democratic, and should remain an indispensable component of the judicial process for the foreseeable future.

After its failure to bring an end to the Balkan wars of the 1990s, the European Union has worked hard to close the infamous 'capabilities-expectations gap' in the field of the European Security and Defence Policy (ESDP). In a very short timeframe, the EU agreed to the following: the institution of new political and military bodies; peculiar structures and procedures to ensure political guidance and strategic direction; principles for consultation and cooperation with non-European allies and other international organisations such as the UN and NATO; measures to enhance the Union's military and civilian capabilities; and the adoption of an acquis securitaire, including a European Security Strategy. The most striking manifestation and raison d'etre of the ESDP is the European Union's capacity to move beyond the paper security structures and back its diplomatic efforts by action on the ground. With the launching of more than twenty ESDP operations in barely five years' time, the EU has affirmed its operational capacity in ESDP. While most of the early ESDP missions were fairly successful, they have also revealed shortfalls, bottlenecks as well as broader issues in crisis management. In this book, prominent academics and leading practitioners explore this wide variety of policy and legal aspects of ESDP and present the lessons which should be taken to heart now that the EU is facing its 'maturity test' as an international crisis manager in high-risk theatres around the world. The book will be an important tool for decision-makers, officials and academics involved in the further development of ESDP. Its contents incorporate the text and potential effects of the Lisbon Treaty and the ECJ's judgment in the Small and Light Weapons/ECOWAS case. Dr Steven Blockmans is a Senior Research Fellow in EU law and Deputy Head of Research at the T.M.C. Asser Instituut, The Hague.

In modern societies, full criminal trials are avoided on many occasions. This book is concerned with mechanisms that either divert from or speed up the proceedings. Koen Vriend argues that the fair trial rights as established by the European Court of Human Rights under Article 6 ECHR provide a normative framework that does not only apply in a full criminal trial, but that it can also be used for diverted and shortened proceedings. He shows that the concept of fairness-as derived from ECtHR case law-is a fundamental principle that underlies all criminal law enforcement. It provides for the appropriate framework to assess whether diverted or shortened proceedings are fair and legitimate. The book is intended for criminal law scholars and practitioners and human rights scholars. Dr. Koen Vriend is a Lecturer of Criminal Law and Criminal Procedural Law at the University of Amsterdam.

This publication succeeds previously published seminars of the Max Planck Institute for Comparative Public Law and International Law (Heidelberg, Germany) dealing with evolving principles and new developments in international law. Due to the limits of traditional dispute settlement in international law and the ongoing scholarly debate on those limits, it focuses on possible innovations and functional approaches to improve international dispute settlement mechanisms. In doing so, it covers a wide variety of topics such as procedures of the WTO, advisory opinions of international courts and tribunals, the privatization of international dispute settlement, the interaction between counsels and international courts and tribunals, and the law-making function of international courts. The aim of this publication is to contribute to the cross-fertilization between these mechanisms and to offer creative impulses for the promotion of international dispute settlement.

This book investigates how a North African solar thermal power plant can be set up under the guidance of European investors (e.g. the Desertec Concept) as a Public Private Partnership (PPP). It outlines the importance of early awareness of contract-related risks, investment risks and dispute settlement, arguing that commercial and investment arbitration are the best tools for settling disputes regarding a large-scale solar thermal project. Furthermore, by comparing institutional and ad hoc arbitration, it shows that the former offers highly suitable support. The latest developments in the area of investment arbitration under EU law and the general acceptance of arbitration in Islamic countries are examined in particular. This book also demonstrates that a solar thermal power plant must meet certain requirements to be considered an investment. These requirements are examined in relation to Art. 25 of the International Centre for Settlement of Investment Disputes Convention (ICSID Convention) and respective case law. Overall, the book offers valuable guidelines for investors and host states on how to successfully implement large-scale solar thermal projects.