Copyright (c) 2010 All rights reserved. http://works.bepress.com/tom_ginsburg Recent documents in Tom Ginsburg en-us Thu, 04 Mar 2010 22:30:23 PST 3600 http://works.bepress.com/tom_ginsburg/31 http://works.bepress.com/tom_ginsburg/31 Wed, 03 Mar 2010 21:36:18 PST Executive term limits are pre-commitments through which the polity restricts its ability to retain a popular executive down the road. But in recent years, many presidents around the world have chosen to remain in office even after their initial maximum term in office has expired. They have largely done so by amending the constitution, or sometimes by replacing it entirely. The practice of revising higher law for the sake of a particular incumbent raises intriguing issues that touch ultimately on the normative justification for term limits in the first place. This article reviews the normative debate over term limits and identifies the key claims of proponents and opponents. It introduces the idea of characterizing term limits as a variety of default rule to be overcome if sufficient political support is apparent. It then turns to the historical evidence in order to assess the probability of attempts (both successful and unsuccessful) to evade term limits. It finds that, notwithstanding some high profile cases, term limits are observed with remarkable frequency. The final section considers alternative institutional designs that might accomplish some of the goals of term limits, but finds that none is likely to provide a perfect substitute. Term limits have the advantage of clarity, making them relatively easy constitutional rules to enforce, and they should be considered an effective part of the arsenal of democratic institutions. Tom Ginsburg Comparative Law Constitutional Law http://works.bepress.com/tom_ginsburg/30 http://works.bepress.com/tom_ginsburg/30 Sun, 20 Dec 2009 05:21:55 PST The Constitutional Court of Korea recently celebrated its 20th anniversary, and has become one of the most respected institutions in Korean society. It is also one of the most important constitutional courts in the world. This book chapter describes the court and some of its important cases, while tracing the sources of its success. Tom Ginsburg Asia http://works.bepress.com/tom_ginsburg/29 http://works.bepress.com/tom_ginsburg/29 Sun, 20 Dec 2009 05:13:15 PST Prognosticators of the international scene have focused on two claims on which there is broad agreement: First, globalization is producing deep integration among nations, moving in the direction of quasi-constitutional global governance; and, second, Asia will significantly influence the world in decades to come. These two claims are in tension with each other. Asian countries have hardly been leaders in deep integration of the constitutionalist variety, though they have been effective participants in globalized markets. Projecting forward, one expects an Asia-dominated international law to emphasize traditional concerns of sovereignty, non-interference, and mutual cooperation rather than the constitutionalist vision of supranational institutions reaching deep into the way states govern themselves and treat their own populations. Eastphalia may be Westphalia without the universalism--a kinder, gentler Westphalia. Tom Ginsburg International Law Asia http://works.bepress.com/tom_ginsburg/28 http://works.bepress.com/tom_ginsburg/28 Sun, 20 Dec 2009 05:08:56 PST This chapter explores the experience of China's East Asian neighbors with regard to judicial independence, with an eye toward drawing lessons for China's own reforms. Japan, Korea and Taiwan collectively provide a useful vantage point to examine developments in China because their rapid growth from the 1950s through the 1990s represents that greatest sustained example of rapid growth in world history. The only comparable period of growth is that of contemporary China, now nearing the end of its third decade. The East Asian cases are also relevant to China because the countries in the region share certain cultural traditions, and because many of them developed their judicial systems during periods of authoritarian governance. Finally, the East Asian cases, like contemporary China, seem to challenge the conventional wisdom that a powerful legal system is necessary for sustained economic development. My argument is that these cases provide nuanced lessons for the Chinese case about the definition of and conditions for judicial independence. Tom Ginsburg Asia Judges http://works.bepress.com/tom_ginsburg/27 http://works.bepress.com/tom_ginsburg/27 Sun, 20 Dec 2009 05:04:49 PST For over four decades, Lawrence Friedman has been one of the key figures in American law and society studies, as well as the country's leading legal historian. His unique vantage point has brought him into contact with a wide range of subfields in legal studies, including comparative law. Though he has never published in the leading journals of the discipline, Friedman's series of book chapters and articles commenting on the field of comparative law have articulated a consistent and important methodological challenge. This essay elaborates Friedman's comparative jurisprudence and argues that comparative law since the 1960s would have been much more fruitful had it followed Friedman's advice to engage with the law and society tradition. The essay also critiques Friedman's use of legal culture as the central focus of analysis. Friedman emphasizes similarities across societies, and hence rejects claims of incommensurability at a theoretical level. But in employing the empirically problematic concept of legal culture as his central explanatory variable, Friedman recreates incommensurability at a practical level. Tom Ginsburg Comparative Law http://works.bepress.com/tom_ginsburg/26 http://works.bepress.com/tom_ginsburg/26 Sat, 21 Feb 2009 18:37:49 PST This paper considers the International Criminal Court's recent indictment of Sudanese President Omar al-Bashir in light of what it characterizes as a clash of commitments. Weak states sign on to the ICC to commit to prosecuting their opponents and so need relatively certain prosecution; the ICC has a similar interest in assuring that prosecutions go forward without regard to political considerations. Yet sometimes states and the international community need to make another form of commitment, namely a commitment not to prosecute. These competing imperatives cannot easily co-exist, and the indictment of al-Bashir brings them into direct conflict. The long delay between the indictment by the ICC prosecutor and confirmation by the Court suggest that the ICC is caught between these competing commitments. Tom Ginsburg International Law http://works.bepress.com/tom_ginsburg/25 http://works.bepress.com/tom_ginsburg/25 Fri, 20 Feb 2009 16:13:29 PST This chapter reviews the literature on public choice theory and constitutional design, focusing in particular on the sub-discipline of constitutional political economy. The basic framework of constitutional political economy has been in place for several decades and has produced some important insights into particular institutions. Other institutions, however, have been ignored, and there is a relatively small amount of empirical work testing the propositions. The chapter summarizes the work to date and identifies areas for more attention in the future. The chapter first reviews the core assumption that constitutional politics are really different than ordinary politics, and the corollary that the constitutional level is more likely to produce public-regarding behavior. It finds these assumptions to be less than fully convincing, in part because constitutional endurance seems to require some level of interest group behavior, and because constitutions can be transformed through amendment. Tom Ginsburg Comparative Constitutions http://works.bepress.com/tom_ginsburg/24 http://works.bepress.com/tom_ginsburg/24 Fri, 20 Feb 2009 16:08:57 PST Thailand's constitution of 1997 introduced profound changes into the country's governance, creating a "postpolitical" democratic structure in which an intricate array of guardian institutions served to limit the role of elected politicians. Ultimately, the constitutional structure was undermined in a military coup against populist billionaire Thaksin Shinawatra, who had taken over many of the institutions designed to constrain political power. Nonetheless, the 1997 constitution appears to be having a significant afterlife, in that its institutional innovations have survived the enactment of a new Constitution and continue to constrain the political process. This article describes the Thai situation and speculates on the conditions for constitutional afterlife. Tom Ginsburg Asia http://works.bepress.com/tom_ginsburg/23 http://works.bepress.com/tom_ginsburg/23 Fri, 20 Feb 2009 16:04:49 PST This Article uses comparative evidence to inform the ongoing debate about the selection and discipline of judges. In recent decades, many countries around the world have created judicial councils, institutions designed to maintain an appropriate balance between judicial independence and accountability. Our Article has two aims. First, we provide a theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we test the extent to which different designs of judicial council affect judicial quality. We find that there is little relationship between councils and quality. We also offer a positive explanation for why judicial councils nevertheless remain attractive institutions. Tom Ginsburg Comparative Law Judges http://works.bepress.com/tom_ginsburg/22 http://works.bepress.com/tom_ginsburg/22 Fri, 20 Feb 2009 15:52:00 PST The reputation of the judiciary, individually or as a whole, determines its status in any given society and its ability to compete effectively for resources. We analyze reputation and make three claims. First, reputation matters. Virtually every theory of judicial power is dependent, ultimately, on perceptions of judges, who famously lack the purse or the sword. Our second claim is that reputation can be divided into individual and collective components. Individual reputation provides information about individual performance whereas collective reputation provides information about the quality of the judiciary in general. We use the economics of team production to analyze the relationship between individual and collective reputation. Third, different legal systems configure institutions in different ways in order to address the problem of information and reputation. This is what we refer to as the industrial organization of the judiciary. The classical understandings of the common law and civil law judiciaries can be seen as sets of linked institutions that are mutually supportive in addressing the problem of information and reputation. Tom Ginsburg Comparative Law Courts Judges http://works.bepress.com/tom_ginsburg/21 http://works.bepress.com/tom_ginsburg/21 Sat, 09 Aug 2008 17:31:29 PDT This chapter surveys powers of constitutional courts beyond the exercise of judicial review. It argues that the assignment of such powers is largely a result of the success of constitutional courts in their core role. More ancillary powers, however, risks destabilizing constitutional courts as they are drawn into major political conflicts. Tom Ginsburg Comparative Constitutions http://works.bepress.com/tom_ginsburg/20 http://works.bepress.com/tom_ginsburg/20 Sat, 09 Aug 2008 17:26:08 PDT Much attention has been paid to the problem of odious debt, but we introduce the problem of the odious creditor, suggesting that more focus be put on those who support regimes committing severe human rights abuses. We also propose a potential solution that will offer marginal incentives to decrease loans to such regimes. Tom Ginsburg International Law http://works.bepress.com/tom_ginsburg/19 http://works.bepress.com/tom_ginsburg/19 Sat, 09 Aug 2008 17:18:47 PDT We identify and document instances of "occupation constitutions," those drafted under conditions of foreign military occupation. Not every occupation produces a constitution, and it appears that certain occupying powers have a greater propensity to encourage or force a constitution-writing process. We anticipate ex ante that occupation constitutions should be less enduring, and provide some supportive evidence to this effect. Some occupation constitutions do endure, however, and we conduct a case study of the Japanese Constitution of 1946. We argue that it had a self-enforcing quality that has allowed it to endure un-amended for over six decades. Unlike conventional understandings of that document as an American imposition that imposed foreign values, we argue that Japanese participation in the adoption process, and familiarity with some of the rights provisions that had already appeared in the Meiji Constitution, helped make the document self-enforcing. Most important of all, however, was that it embodied a political bargain that fit the basic cleavages in Japanese society. Tom Ginsburg Comparative Constitutions http://works.bepress.com/tom_ginsburg/18 http://works.bepress.com/tom_ginsburg/18 Wed, 06 Aug 2008 22:31:57 PDT Tom Ginsburg Comparative Constitutions International Law http://works.bepress.com/tom_ginsburg/17 http://works.bepress.com/tom_ginsburg/17 Wed, 06 Aug 2008 22:28:20 PDT Tom Ginsburg http://works.bepress.com/tom_ginsburg/16 http://works.bepress.com/tom_ginsburg/16 Wed, 06 Aug 2008 22:21:24 PDT In an era when democratization is stalled or in retreat in many parts of the world, it is important to highlight the successful democratic experience of East and Southeast Asia in recent decades. Five consolidated democracies have emerged since the mid-1980s; only Thailand has seen some backsliding with the 2006 coup. The Asian cases provide insights into several major debates in the democratization literature, including the relative importance of culture, history, economic structure, and the optimal sequencing of political and economic reform. This article reviews these issues, with particular attention to the role of outside powers in underpinning democratization. Ultimately, the Asian cases offer evidence for optimism about the prospects of a Fourth Wave of democratization. Tom Ginsburg Asia http://works.bepress.com/tom_ginsburg/15 http://works.bepress.com/tom_ginsburg/15 Sat, 19 Jan 2008 17:12:44 PST Tom Ginsburg Asia http://works.bepress.com/tom_ginsburg/14 http://works.bepress.com/tom_ginsburg/14 Wed, 08 Nov 2006 04:11:38 PST This paper describes and analyzes the rapid increase in civil litigation in Japan during the 1990s in light of existing theories of Japanese litigiousness. Using a unique dataset of prefecture-level data, it demonstrates that the 1990s increase in litigation is best attributed to two main factors: the expansion in institutional capacity for litigation traced to procedural reforms and an expansion in the formerly miniscule bar; and structural changes in the Japanese economy related to the post-bubble slowdown in growth. The paper contributes to three literatures. First, it builds on earlier institutionally-oriented research on civil litigation in Japan by Haley and Ramseyer by providing new data and detail about the institutional barriers to litigation. Second, it contributes to the literature on the relationship between economic change and litigation more generally. Finally, it contributes to the empirical and comparative literature on litigation rates by providing evidence about the determinants of litigation in one country. Tom Ginsburg Law and Economics Asia http://works.bepress.com/tom_ginsburg/13 http://works.bepress.com/tom_ginsburg/13 Wed, 08 Nov 2006 04:11:34 PST This article focuses on three information-related puzzles related to how large law firms recruit entry-level lawyers. First, firms hire on the basis of limited information, usually restricted to two semesters of grades. Second, firms do not rely primarily on laterals, who are already trained. Third the recruiting process involves considerable redundancy, with both students and firms spending much time and energy talking with interlocutors they will not work with. The article first develops a descriptive narrative based on an empiri-cal study of recruiting in the Chicago legal market. The article then goes on to argue that each of the recruiting puzzles can be explained as a "two sided matching" problem, a common feature of labor mar-kets. In contrast with certain other matching markets (notably the market for medical residents), the market for law firm associates is decentralized, meaning that there is no mechanism to coordinate the participants in the market. The article speculates on why no cen-tralized matching mechanism for placing young associates exists. Why some professions utilize centralized matching mechanisms and others do not is a question that has not been addressed heretofore, despite a fairly well-developed literature on matching markets. Given that Canada has some experience with such a mechanism for placing young lawyers, to say nothing of the medical profession, the question is most certainly a relevant one with respect to the market for elite law firm associates.. The empirical study helps us under-stand the conditions under which a decentralized matching market will remain decentralized (or conversely, why a centralized matching market will centralize), a question not yet considered in the litera-ture.This article is relevant not only to the economics literature on match-ing markets, but also an addition to the literature on the sociology, economics and organization of the large law firm as a professional services firm. Despite a fairly broad literature on how law firms maintain, motivate and jettison their members, there has been little attention to how large law firms select these members in the first place. Tom Ginsburg Law and Economics http://works.bepress.com/tom_ginsburg/12 http://works.bepress.com/tom_ginsburg/12 Wed, 08 Nov 2006 04:11:33 PST National constitutions exhibit a wide variety of approaches to international law. Some constitutions provide that customary international law is directly incorporated into the constitutional order, while others do not even mention customary international law. Some constitutions establish elaborate treaty-making processes, while others have relatively simple processes involving one or two actors. We have to date very little theory as to why countries differ on these dimensions. This article draws on the literature on constitutions as pre-commitment devices, and examines the unique features of international law that facilitate policy entrenchment. It argues that constitution-writers design the interface with international law to facilitate an optimal level of commitment. In particular, international law is useful to constitution-writers in new democracies, who have relatively limited domestic mechanisms to commit themselves to policies. The article draws on a new database of national constitutions to provide empirical evidence for these propositions. Tom Ginsburg International Law