Courts In Context Research Articles

Courts in Context. An Empirical Re-Evaluation of Categorization in the Asylum Regime

The international order is based on the fundamental belief that nation-states can control access to their territories. Asylum law puts this logic into perspective by guaranteeing fair procedures to those seeking protection and, if accepted, basic civil and social rights. Asylum practice thus operates in a tension between universal human rights and migration control, part of which is the categorization of people according to their needs for protection. International and national courts are key actors mediating this tension. By applying and interpreting the law, they contribute to the dynamic evolution of both substantial and procedural asylum law. The aim of this special issue is to empirically analyse the legal practice of categorization from different disciplinary perspectives and thus contribute to interdisciplinary asylum law research.

Towards Smarter and Fairer Justice? A Review of the Chinese Scholarship on Building Smart Courts and Automating Justice

This article reviews how Chinese scholars debate the policy of building smart courts in the context of judicial reform. This policy entails the automation and digitisation of judicial processes. It is part of broader judicial reforms that aim to create a more accurate and consistent judiciary. The article identifies four reform concepts that guide the debate: efficiency, consistency, transparency and supervision, and judicial fairness. This review is a meta-synthesis, using practices of narrative and systematic literature reviews, focusing on evaluating and interpreting the Chinese scholarship and reform concepts. It reviews how Chinese scholars discuss the implications of judicial automation and digitisation. Additionally, it analyses the normative concepts behind the reform goals within China’s political-legal context. The analysis finds that the generally positive evaluation in the debate can be explained by an instrumentalist understanding of the reform concepts and the political purpose of courts in the Chinese political-legal context.

Specialized IP Courts in China – Judicial Governance of Intellectual Property Rights

At the end of 2014, China introduced new specialist intellectual property (IP) courts. Although China had IP tribunals within the People’s Courts, the reform to establish separate IP courts was touted as a significant step in establishing the rule of law in the governance of IPRs in China. This is not surprising considering that an independent judiciary is central to the rule of law. This institution affirms and enforces private rights, as well as providing necessary impartiality in the process of decision-making among peer institutions. China has recently undergone several legislative reforms which amend substantive IP law. It is not surprising that this was followed by both administrative and judicial reforms. Introducing a specialized court with exclusive jurisdiction will likely affect other institutions with similar competences, e.g. general courts or administrative tribunals. Institutional choices significantly affect the outcome of decision-making because the processes of decision-making differ and will involve different stakeholders. Often, institutions move together and a change in one of them is likely to cause a change in another, even without explicit efforts to effect such changes. Therefore, any institutional reform project needs to reflect measures to contain or coordinate unintended consequences or impacts on other institutions resulting from such changes. This paper places Chinese specialized courts in a global context. We will first describe the function of a specialized IP court from a comparative institutional perspective. Next, we place the Chinese specialized IP courts in the context of the national administration-driven IP strategy to highlight the Chinese characteristics. In its analysis, this paper explores whether the perspective of institutional comparison may be applied to Chinese institutional reforms. It also argues that the rationale for introducing specialized IP courts in China may be more than merely improving technological competence and concentration of expertise of the court; it signals a step towards independent judicial decision-making, towards the establishment of the rule of law and market-oriented decision-making.

Asian Courts in Context

This article is a book review of Asian Courts in Context , Jiunn-Rong Yeh and Wen-Chen Chang, Editors. Cambridge, UK: Cambridge University Press, 2015. ISBN 978-1-107-06608-3

The Judiciary in Economic and Political Transformation: Quo Vadis Chinese Courts?

The Judiciary in Economic and Political Transformation: Quo Vadis Chinese Courts?

The International Criminal Court in Context: Mediating The Global and Local in the Age of Accountability - Commentary on the Rome Statute of the International Criminal Court. Edited by Otto Triffterer. Baden-Baden: Nomos, 1999. Pp. xxvii, 1295. €197. - The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Edited by Roy S. Lee. Ardsley NY: Transnational

The International Criminal Court in Context: Mediating The Global and Local in the Age of Accountability - Commentary on the Rome Statute of the International Criminal Court. Edited by Otto Triffterer. Baden-Baden: Nomos, 1999. Pp. xxvii, 1295. €197. - The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Edited by Roy S. Lee. Ardsley NY: Transnational

Studying Courts in Context

Civil courts and litigation, long a neglected area of legal scholarship (Hurst, 1981), have begun to receive more attention and due recognition of their important role in the legal system and society. Analyses of what the civil courts do, and fail to do, are taking their place beside the numerous studies of the criminal courts. A critical literature has emerged, with some arguing that our system provides no effective forum for many civil complaints (Nader, 1980) and others expressing concern that the adversarial mode of dispute processing—the hallmark of Anglo-American civil procedure—may be costly and inappropriate for many conflicts (Fuller, 1978; Horowitz, 1977; Simon, 1978). Critics have also pointed to rising litigation rates and court caseloads, generated spectres of a “litigation explosion” or “crisis in the courts,” and worried about excessive litigiousness (Barton, 1975; Manning, 1977; Rosenberg, 1972).