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| 1 |
ID:
139636
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| Summary/Abstract |
This article considers the fracturing of “community” and the turn to litigation in the wake of nominally settled land restitution claims in South Africa. We describe emergent incongruence between groups of claimants, the projects of restitution, and the new legal entities that represent the claimants. As a result, discontented South African land claimants are challenging the new legal entities created in the restitution process, rather than the state and private sector actors upon which development-oriented Settlement Agreements depend. We focus on two of the earliest and largest land claims involving urban land and protected areas, District Six and Dwesa-Cwebe, but our argument extends beyond these cases. We then consider the implications of increased claimant litigation for the governance of relations between claimants and the state, and the management of dissent in the context of neo-liberalization. In concluding, we argue that struggles among claimants undermine the potential for more concerted action to address the shortcomings of restitution.
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| 2 |
ID:
127343
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2014.
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On May 31, 2010, Australia instituted proceedings before the International Court of Justice in the case of Whaling in the Antarctic (Australia v. Japan). Although Australian politicians had for some time threatened such a course of action, the decision to proceed with international litigation took many observers by surprise, most basically because Japan appeared to be in a strong legal position and the risks associated with the case appeared greater than Australia's prospects for success. This article examines the background to the whaling dispute and suggests two ways in which litigation in the World Court may contribute to resolution of the dispute no matter the legal outcome of the case.
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| 3 |
ID:
075805
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2006.
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| Summary/Abstract |
examine the determinants of conflict and settlement by embedding probabilistic contests in a bargaining framework. Different costly enforcement efforts (e.g. arming, litigation expenditures) induce different disagreement points and Pareto frontiers. After examining the incentives for settlement, I demonstrate how different division rules and bargaining norms have real, economic effects. I then analyze some sources of conflict. I emphasize long?term, strategic considerations by examining an illustrative model and discussing particular historical examples.
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| 4 |
ID:
146542
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Focusing on the dispute resolution mechanisms for defusing various social disturbances and collective incidents during the reform period and particularly in the last decade, this paper argues that the Chinese government has adopted pragmatic and problem-solving approaches to designing and developing various mechanisms of dispute resolution in response to the complicated and challenging situation of steadily increasing and intensifying social contention. There is evidence that neither litigation nor non-litigation means of dispute resolution can effectively resolve social conflicts. In light of this difficulty, various experiments have been put in place at the local level to meet social needs and manage social crises while balancing state power and social self-governance. We call such experiments “diversified mechanisms of dispute resolution (DMDR).” This study sheds light on the shift from an emphasis on the earlier non-litigation approach to a more diversified way of addressing collective disputes in contemporary China.
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| 5 |
ID:
178171
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Under Xi Jinping, the Chinese state has asserted authoritarian control over many aspects of civil society. Yet there is evidence that Chinese citizens are continuing to mobilize and organize with relative levels of success. This article examines one mechanism that prevents the Chinese state from eliminating civil society: the political ideology of suzhi (素质), translated as ‘quality’ in English. In the post-Mao era, the Chinese Communist Party (CCP) has increasingly invested its political legitimacy in its ability to deliver a rising quality of life to its citizens. This dynamic means that it is possible for Chinese citizens to mobilize and organize to achieve their goals. Suzhi ideology gives citizens one set of means to effectively limit undesirable behaviour by the state. It also provides citizens with leverage to make the state respond robustly to their needs and desires. It opens up possibilities for citizens to solve social problems on their own, without recourse to state actors. This article will examine four arenas of Chinese civil society which suzhi ideology protects under the Xi regime: media-inspired public outrage; public protests and demonstrations; NGOs as state consultants; and the increased accessibility of litigation.
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| 6 |
ID:
140288
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China's Labor Contract Law came into force on January 1, 2008. One of several important legislative acts aimed at improving the processing of labor grievances through mediation, arbitration, and litigation, and averting collective labor protest, it provides that all employed persons must work under written individual employment contracts. We evaluate the legislation's impact nationally and by province for the years before and after the law's adoption. Observing that the law's effect varied substantially across provinces, we estimate the effects of the law, controlling for time, development level, export intensity, and migrant labor share, on the volume of disputes by province using a cross-sectional time series design. We also examine the law's impact on the incidence of collective disputes and the grounds for disputes. We find that the law significantly increased the volume of labor disputes, raising questions about the relative costliness of the government's strategy for managing employment relations.
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| 7 |
ID:
132753
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2014.
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Traditionally, disputes over injury compensation that were brought to court involved one or a few plaintiffs and defendants and were processed individually. The risk and expense of such litigation meant that most victims of legally cognizable injuries never came through the courthouse doors. The modern global economy, however, has vastly increased the potential for mass harms and losses, and modern mass media have created felicitous circumstances for mass claiming. Aggregated mass litigation blasts open the courthouse doors for individuals who might otherwise find them closed. Aggregation benefits some but disadvantages others. Class action rules attempt to mitigate these conflicts, but such procedures do not apply to aggregate non-class litigation. It is time for courts to adopt rules and practices that recognize the realities of such litigation.
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| 8 |
ID:
183196
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This review essay briefly discusses Granville Austin’s landmark study of the working of the Indian Constitution and its critics, reviews three recent books on that Constitution, and evaluates the extent to which these new works have been able to take constitutional studies in new directions. All three books shine a light on the critical role of the Constitution and the courts in Indian democracy. While the authors are well aware of contemporary challenges to constitutionalism and have written on them elsewhere, this does not fully come through in their books. Despite this shortcoming, these recent studies are indispensable in making sense of the Constitution and its role in Indian democracy.
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| 9 |
ID:
132760
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2014.
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| Summary/Abstract |
In order to carry out their functions of deciding particular cases and developing legal rules and principles, courts need information: not just information about the law, but also factual information about the particular matter in controversy and about the world in general. The way in which courts are structured, however, makes it more difficult for them to obtain the information they need than it is for most other public decision-making institutions. As the world becomes more complex, and as sophisticated scientific, technical, and financial information becomes more central to litigation and to the judicial function, the systemic disabilities of the courts in obtaining the information they need become more apparent and increasingly more problematic.
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| 10 |
ID:
113960
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2012.
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| Summary/Abstract |
This article analyzes linkages between litigation in the World Trade Organization (WTO) Dispute Settlement Body (DSB) and negotiation in multilateral trade rounds and develops a typology of links that can occur between the two processes. These include creating conditions where bargaining is informed by law, influencing the agenda-setting and creating momentum for negotiation on key issues, and affecting the status quo from which negotiations proceed by influencing interpretation of trade rules in the DSB. The purpose is to test whether poor and inexperienced states that are disadvantaged in negotiations can improve their bargaining power in negotiation rounds by pursuing legal proceedings, to see whether links can be exploited for strategy-making to promote the interests of these states, and to discuss how the WTO as an international organization benefits from their empowerment. The strategies suggested in this article could improve the commitment and active participation of relatively non-influential member states. This could be conducive to perceptions of the WTO as a legitimate organization and to a more constructive climate for effective negotiations.
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| 11 |
ID:
139800
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| Summary/Abstract |
Conventional wisdom holds that the creation of international, court-like institutions helps countries to peacefully settle trade conflicts, thereby enhancing overall welfare. Many have argued, however, that these institutions remain ultimately ineffective because they merely reflect the distribution of power in the anarchic international system. We argue that international litigation provides economic spillovers that create opportunities for judicial free-riding and explore empirically how litigation in the World Trade Organization affects bilateral trade between countries involved in a trade dispute. We use a matching approach to compare the dynamics of trade flows between countries that experienced a panel ruling with trade relations of observably similar country pairs that did not experience a ruling. Based on this comparison we find that sectoral exports from complainant countries to the defendant increase by about $7.7 billion in the three years after a panel ruling. However, countries that have proactively filed a complaint and carried the main costs of litigation do not systematically gain more than less-active third parties that merely joined an existing trade dispute. This suggests that international judicial institutions can provide positive economic externalities and may thereby lead to a less power-based distribution of the gains from trade.
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