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I·CONnect

Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

Book on Oakes

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Published on August 11, 2009
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Political Donations in Japan

A new article about the law of political donations in Japan:

In Japan, there has been increased scrutiny of companies’ general participation in the political process, in particular political campaign contributions. Over the past decade, Japan has placed new restrictions on companies’ political giving and has required greater disclosure of campaign contributions. Increasingly, shareholders are seeking to hold companies accountable for their campaign contributions. However, political activities generally require substantial funds and the situation in Japan is no different. Consequently, political activities require donations from corporations and individuals. In Japan the challenge to the ruling Liberal Democrats, and the broader political crisis, in the 1990s and early 2000s centered on a series of scandals involving payments to politicians for their huge election expenses. Political donations are classified by donor into two groups: corporate donations and personal donations. Under current law, corporate donations are often viewed as collusion between business entities and politicians. Therefore, donations to individual politicians are prohibited, unless the donation is to a single fund raising group managed by a particular politician. An individual politician can appoint only one organization as a single fund managing organization through which he can accept political donations from individuals. This exception is applicable only to personal donations. Donations to political parties can be divided into two categories: (1) those made directly to political parties; and, (2) those made to political funding organizations controlled by political parties. Corporations and individuals may donate money to either institution. However there is a limit on the political donations of corporations: corporations that have lost money over three consecutive years cannot make any political donations. Political donations made under such adverse circumstances may be considered to have unhealthy and unsound purposes; further, shareholders may not approve of such contributions.

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Published on August 11, 2009
Author:          Filed under: Uncategorized
 

Political Donations in Japan

A new article about the law of political donations in Japan:

In Japan, there has been increased scrutiny of companies’ general participation in the political process, in particular political campaign contributions. Over the past decade, Japan has placed new restrictions on companies’ political giving and has required greater disclosure of campaign contributions. Increasingly, shareholders are seeking to hold companies accountable for their campaign contributions. However, political activities generally require substantial funds and the situation in Japan is no different. Consequently, political activities require donations from corporations and individuals. In Japan the challenge to the ruling Liberal Democrats, and the broader political crisis, in the 1990s and early 2000s centered on a series of scandals involving payments to politicians for their huge election expenses. Political donations are classified by donor into two groups: corporate donations and personal donations. Under current law, corporate donations are often viewed as collusion between business entities and politicians. Therefore, donations to individual politicians are prohibited, unless the donation is to a single fund raising group managed by a particular politician. An individual politician can appoint only one organization as a single fund managing organization through which he can accept political donations from individuals. This exception is applicable only to personal donations. Donations to political parties can be divided into two categories: (1) those made directly to political parties; and, (2) those made to political funding organizations controlled by political parties. Corporations and individuals may donate money to either institution. However there is a limit on the political donations of corporations: corporations that have lost money over three consecutive years cannot make any political donations. Political donations made under such adverse circumstances may be considered to have unhealthy and unsound purposes; further, shareholders may not approve of such contributions.

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Published on August 11, 2009
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The Sociology of Comparative Constitutional Scholarship

poli sci/non-US focus
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Published on August 10, 2009
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Legal Rights in China

An interesting story here about the detention of a legal rights activist in China.

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Published on August 10, 2009
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Helmke and Rosenbluth on Judicial Independence

Gretchen Helmke, who has written earlier on many topics, including the politics of constitutional review in Argentina, has a new paper (gated) with Frances Rosenbluth about judicial independence from a comparative perspective:

According to popular wisdom, judicial independence and the rule of law are essential features of modern democracy. Drawing on the growing comparative literature on courts, we unpack this claim by focusing on two broad questions: How does the type of political regime affect judicial independence? Are independent courts, in fact, always essential for establishing the rule of law? In highlighting the role of institutional fragmentation and public opinion, we explain why democracies are indeed more likely than dictatorships to produce both independent courts and the rule of law. Yet, by also considering the puzzle of institutional instability that marks courts in much of the developing world, we identify several reasons why democracy may not always prove sufficient for constructing either. Finally, we argue that independent courts are not always necessary for the rule of law, particularly where support for individual rights is relatively widespread.

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Published on August 8, 2009
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The Spread of the Jury Trial

David Law’s excellent post (if you liked that, you should read his great article on Japan, employing a relatively new, interview-based strategy for studying comparative constitutional law, an article which Ran Hirschl also referenced) reminded me to draw attention to a new article on the spread of the jury trial around the world. The abstract is below:
Recent years have witnessed the widespread diffusion of the jury trial across the globe. Considered by many to be a foundational element of participatory democracy, nations as culturally and geographically diverse as Mexico, Kazakhstan, and Japan are currently in the process of adopting mechanisms for the lay adjudication of criminal cases. This Paper investigates the historical origins of the jury trial’s global spread, focusing particular attention on the recent example of South Korea. Situating its analysis within a comparative framework, the Paper pays particular attention to how the Korean system contrasts with those persisting in the United States and Western Europe.
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Published on August 8, 2009
Author:          Filed under: David Fontana, hp, jury system
 

Comparative Constitutional Law and Visiting Professors

Yes, I admit it: I read Brian Leiter’s Blog. While it might not be as hard to admit that as it is to admit that I also read Above the Law, not all law professors freely admit that they read Leiter’s Blog.

But of the many sources of helpful information it provides, one is information about visiting faculty at the highest-rated American law schools. A review of the list of next year’s visitors suggests several people with some level of interest in comparative constitutional law visiting at the highest-rated law schools.

A preliminary note: I know from talking to many law professors, including many of the contributors to this blog, that having someone in your field hired by a highly-ranked law school provides a degree of legitimacy and recognition to your field. So Yale’s decision to hire Alec Stone Sweet, Harvard’s decision to hire Mark Tushnet (now writing a lot about comparative constitutional law, even if he has written about other topics for many years), NYU’s decision to hire Mattias Kumm, Chicago’s decision to hire our own Rosalind Dixon and Tom Ginsburg, and so on, were major legitimating moments for the field of comparative constitutional law.

Leiter’s list of visitors for next year includes many with interest in comparative constitutional law (my apologies if I miss some names, particularly from the group of foreign visitors with whose work I am less familiar): Cristina Rodriguez and Kim Lane Scheppele visiting at Yale, Kumm, Maximo Langer (more interested in comparative criminal law), Sanford Levinson and Rodriguez at Harvard, Youngjae Lee at Chicago, Daphne Barak-Erez at Stanford, and Jacqueline Ross (more interested in comparative criminal law) at NYU.

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Published on August 8, 2009
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How do you say “ladies, gentlemen, and judges of the jury” in Japanese?

For the first time in decades, as the Economist reports, Japan once again has a jury system (or, if you’re feeling saucy, a “saiban-in seido”), and it is puzzling in a variety of ways. The first puzzle has to do with its sheer existence. It’s not clear who exactly wants this system, or why. Regular citizens, not surprisingly, are not keen to sit on juries. It’s not as if the government is satisfying some well-financed corporate lobby by doing this. Criminal defendants aren’t exactly a political force to be reckoned with. And judges cannot be pleased at the prospect that they will not only have to deal with juries, but will also have to actually sit on the juries themselves.

Therein lies another weird aspect of the new system: the juries are to be manned by a combination of professional judges and lay jurors. By law, the lay jurors are supposed to outnumber the professional judges, and the judges have to give the lay jurors sufficient opportunity to express their opinions. This means, of course, that everybody recognizes that the judges will tell the lay jurors what to do, and the lay jurors will go along with it. Which, again, might lead you to wonder why the jury system is being introduced, other than perhaps to take the heat off the judiciary for the 99% conviction rate that seems scandalously high and permanently fixed against defendants. (But don’t take my word for it; again, take it from the Economist, which has much to its credit repeatedly drawn attention to this aspect of the Japanese legal system.)

No one should be surprised that the saiban-in seido sounds pretty familiar–oh sure, juries, we all know what those are–but ends up being more than a little different. I’ll avoid the low road of making some reference to things being lost in translation and instead take the slightly less low road of noting that there’s a word for this phenomenon: Japanization. As in: “We’re going to take this Western institution and Japanize it. Maybe it will be better, as in the case of the menu at Denny’s; maybe it won’t. But by the time we’re done with it, it will surely be different.”

In sum: perhaps no one can be sure why Japan’s government is doing this. But what I do know for a fact–because I saw it myself, in total disbelief–is that Japan’s otherwise suitably grey and somber Minister of Justice dressed up as a giant green parakeet (canary? parrot? you tell me) on national television to promote the system. (Have I mentioned that it’s not clear who wants this system, or why?)

In our next episode: why are Japan’s Catholic clergy refusing to participate in the new jury system? Was it the bird costume? Stay tuned.

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Published on August 7, 2009
Author:          Filed under: criminal justice, David Law, Denny's, Economist, hp, Japan, jury system, parakeet, saiban-in seido
 

A New Chief Justice for South Africa

Today, President Zuma announced that Justice Sandile Ngcobo will become the new Chief Justice of South Africa. The appointment is potentially significant in both: (1) what it says about Zuma’s commitment to judicial independence; and (2) what it signals about the likely direction of the Constitutional Court’s jurisprudence, at least over the next two years, prior to Ngcobo’s likely retirement (under the current Constitutional requirements).

Zuma initially considered appointing to the post Cape Judge President, John Hlophe, but this potential appointment was criticized on the grounds that it threatened the independence of the judiciary. (A complaint has been lodged with the South African Judicial Services Commission against Hlophe for an approach he allegedly made to the Constitutional Court in relation to previous corruption proceedings against the President–see http://www.capetimes.co.za/?fSectionId=&fArticleId=nw20090807160426356C574047.) The decision to appoint Ngcobo over Hlophe is, therefore, a hopeful sign of Zuma’s willingness to respect the independence of the judiciary. At the same time, there is some suggestion that the President was influenced in his decision to appoint Ngcobo, over Justice Dikgang Moseneke, the current Deputy Chief Justice, by recent comments by Moseneke criticizing Zuma for an earlier attack on the independence of the judiciary – see http://www.capetimes.co.za/?fSectionId=&fArticleId=vn20090807032911202C832679). If that is right (a suggestion the President strongly denies), the near-term future of judicial independence in South Africa is still far from completely assured.

Ngcobo’s appointment also signals that, while continuing its recent track-record of protecting individual rights, the South African Constitutional Court is likely over the next two years to take a somewhat more pro-majoritarian approach in some areas under the South African Bill of Rights. (For a great article on certain important instances of counter-majoritarian decision-making by the Constitutional Court, see Theunis Roux, “Principle and Pragmatism on the Constitutional Court of South Africa”, 7 International Journal of Constitutional Law 106 (2009).)

When it comes to the rights of prisoners, while a majority of the Court in Minister of Home Affairs v NICRO, CCT 03/04, for example, struck-down a law disenfranchising prisoners, Ngcobo would have upheld the law except as applied to those in detention pending trial. In various cases involving claims to sexual freedom, Ngcobo has also taken a somewhat conservative, pro-majoritarian position in writing for the Court in dismissing a Constitutional challenge to prostitution laws (Jordan v The State, CCT 31/01); and in adopting a narrow view of the scope of freedom of expression as applied to nude dancing (Phillips and Another v The Director of Public Prosecutions, CCT 20/02).

In other contexts, in dissent Ngcobo has advocated even stronger protection of individual rights than the majority, but generally in contexts where the right in question has some real support among black South Africans (see e.g. Prince v. The President of the Law Society, CCT 26/00, involving the right to sacramental use of cannabis).

Those who recall President Nixon’s attack on the U.S. Supreme Court during the 1968 Presidential elections, and his subsequent appointment of Warren Burger as Chief Justice, might see some parallels in South Africa today. From this perspective, there may also be reason to hope that Zuma’s anti-court rhetoric is gradually taking a form that from an American standpoint is both far more familiar and less threatening than previously.

-RD

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Published on August 7, 2009
Author:          Filed under: courts, hp, Rosalind Dixon, south africa