Moving Towards a Nominal Constitutional Court? Critical Reflections on the Shift from Judicial Activism to Constitutional Irrelevance in Taiwan\u27s Constitutional Politics

The Taiwan Constitutional Court (TCC, also known as the Council of Grand Justices) has been regarded as a central player in Taiwan’s transition to democracy in the late twentieth century. Transforming from a rubberstamp under the authoritarian regime into a facilitator of political dispute settlement, the TCC channelled volatile political forces into its jurisdiction. Thanks to the TCC’s judicial activism, the judicialization of constitutional politics was characteristic of Taiwan’s democratization in the last two decades of the twentieth century. The TCC scholarship asserts that the TCC has continued to play a pivotal role in Taiwan’s constitutional politics in the twenty-first century. Taking issue with this popular view, this article focuses on twenty-first century TCC case law to argue that Taiwan’s constitutional politics has moved towards de-judicialization as the TCC has gradually turned away from judicial activism in the face of escalating constitutional conflicts. With the TCC retreating from constitutional politics, this article argues that its constitutional jurisdiction is becoming nominal with the Constitution losing its grip on politics again

From Origin to Delta: Changing Landscape of Modern Constitutionalism

This article deals with the question of whether and to what extent the two forces of democratization and globalization have altered our understandings of constitutionalism. We attempt to theorize a changing landscape of constitutionalism that includes transitional and transnational perspectives and examine respectively their features, functions and characteristics. First, we analyze respective developments of transitional and transnational constitutionalism by identifying their features, perspectives, functions, and characteristics. Then we examine to what extent and in what ways the developments in transitional and transnational constitutionalism pose challenges to our traditional understanding of modern constitutional laws. Finally, we shall picture a new constitutional delta thus emerged and try to argue that notwithstanding challenges, the addition of transitional and transnational constitutionalism to traditional understandings has expanded the horizon of constitutionalism and created new opportunities for a coming generation of constitutional lawyers

UBIAS Directors Conference on "Rising New Perspectives in an Age of Globalization: Challenges and Prospects" Institutes for Advanced Studies in Humanities and Social Science, National Taiwan University, November 27–29, 2014

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Environmental Law in Global Perspective: Five Do\u27s and Five Don\u27ts from Our Experience

Lessons learned from U.S. environmental law. Five best and five worst things in U.S. environmental law. Third-mover advantage by which legal systems may be do better by adopting legal devices after studying experience elsewhere. Virtual regulation by which incentives from regulatory system are intended to affect behavior outside

The Unity of Constitutional Values: A Comment on Ernest Caldwell\u27s Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes

Ernest Caldwell wants to defend Chinese constitutionalism from criticism, mainly from Western constitutional scholars or scholars who hold up Western constitutional patterns as an ideal. Caldwell makes both a \u27comparative\u27 claim and a \u27value\u27 claim. The comparative claim is that Chinese constitutional law must be understood on its own terms and that on these terms it does protect rights, even if it does not do so in the same way as Western constitutional law. The value claim is that the procedures in China\u27s legal system satisfy value concerns captured in the term \u27constitutionalism\u27 because they show how that system respects the supremacy of constitutional norms in a way that, though different from, is not inferior to Western constitutionalism. I take up and challenge both the comparative and the value claims. In particular, I argue, first, that one need not adopt the perspective that Chinese constitutional law must be seen entirely on its own terms and in a way that cannot be compared with Western models without generating misunderstanding. Second, I argue that Caldwell is mistaken in thinking that the value of judicial review can be satisfied by the horizontal rights review he finds in Chinese constitutional law

The Limits of Global Judicial Dialogue

The notion that “global judicial dialogue” is contributing to the globalization of constitutional law has attracted considerable attention. Various scholars have characterized the citation of foreign law by constitutional courts as a form of “dialogue” that both reflects and fosters the emergence of a common global enterprise of constitutional adjudication. It has also been claimed that increasing direct interaction between judges, face-to-face or otherwise, fuels the growth of a global constitutional jurisprudence. This Article challenges these claims on empirical grounds and offers an alternative account of the actual reasons for which constitutional courts engage in comparative analysis. First, it is both conceptually and factually inaccurate to characterize the manner in which constitutional courts cite and analyze foreign jurisprudence as a form of “dialogue.” As a conceptual matter, constitutional courts do not cite one another for the purpose of communicating with another, while as an empirical matter, there is little evidence to suggest that one-sided citation of a handful of highly prestigious courts has given way to genuine two-way dialogue. Second, judicial interaction is neither a necessary nor a sufficient cause of constitutional globalization. Rather, the effect of such interaction on the extent to which judges engage in comparativism is dwarfed by institutional and structural variables that lie largely beyond judicial control. The relative unimportance of judicial interaction is illustrated by a comparative case study of the Constitutional Court of the Republic of China (Taiwan), which is akin to a natural experiment in the capacity of a constitutional court to make use of foreign law even when it is largely deprived of contact with other courts. Taiwan’s precarious diplomatic situation effectively precludes the members of its Constitutional Court from participating in international judicial gatherings or visits to foreign courts. Nevertheless, the Taiwanese Constitutional Court nearly always engages in extensive comparative constitutional analysis, either expressly or implicitly, when rendering its decisions. To explain how and why the Court makes use of foreign law notwithstanding its isolation, this Article combines quantitative analysis of citations to foreign law in the Court’s published opinions with indepth interviews of numerous current and former members of the Court and their clerks. Comparison of the Taiwanese Constitutional Court and U.S. Supreme Court demonstrates that “global judicial dialogue” plays a much smaller role in shaping a court’s utilization of foreign law than institutional factors such as (a) the rules and practices governing the composition and staffing of the court and (b) the extent to which the structure of legal education and the legal profession incentivizes judges and academics to possess expertise in foreign law. Notwithstanding the fact that American justices enjoy unsurpassed opportunities to interact with judges from other countries, comparative analysis plays a less frequent role in their own constitutional jurisprudence than in that of their foreign counterparts. Openness on the part of individual justices to foreign law ultimately cannot compensate for the fact that the hiring and instructional practices of American law schools neither demand nor reward the possession of foreign legal expertise. This Article also documents the fact that judicial opinions are a highly misleading source of data about judicial usage of foreign law. Interviews with members of the Taiwanese Constitutional Court and their clerks reveal the existence of a large gap between the frequency with which the court cites foreign law in its opinions and the extent to which it actually considers foreign law. Analysis of judicial opinions alone may lead scholars to conclude mistakenly that a court rarely engages in comparative analysis when, in fact, such analysis is highly routine

Socialist Republic of Vietnam v. Pham Thi Doan Trang

On the night of October 6, 2020, at the conclusion of a virtual human rights meeting between the governments of the United States of America and Vietnam, Vietnamese police arrested the journalist and human rights activist Pham Thi Doan Trang at her home in Hanoi. Ms. Trang was arrested and detained for allegedly “conducting propaganda against the Socialist Republic of Vietnam” and “making, storing, spreading information, materials, items for the purpose of opposing the State of Socialist Republic of Vietnam” — two of the most notorious of Vietnam’s fifteen national security offenses. It would be a full year — during which time Pham Doan Trang was held incommunicado in detention — before she would meet her lawyers and receive her indictment in October 2021, despite the fact that the indictment itself is dated August 30, 2021. After a one-day trial on December 14, 2021, Ms. Trang was convicted and sentenced to nine years in prison — more than the seven to eight years recommended by the prosecuting authorities. Ms. Trang has since appealed. As of the date of this report, the court of appeals has yet to consider her appeal

Assessing Alternative Policies for Reducing Household Waste in Taiwan

In the last few years, the three major cities in Taiwan have been experimenting with two different demand-side management approaches to reduce the waste generated by households and to promote the recycling of recyclables. Thus, there are three different kinds of approaches of waste management that are concurrently used in Taiwan: fee-per-bag, mandatory recycling with free waste collection services, and the zero price of trash collection. We performed a comparative analysis of these policy instruments to take advantage of this important social experiment. We first developed an economic model for the three different waste charging programs concurrently in use and then performed an empirical study based on the implications from the theoretical analysis. It is clearly seen that the traditional approach of zero pricing of trash collection is very ineffective in terms of waste reduction and recycling. Households have all changed their behavior significantly in those cities with two new approaches. However, of the two, the fee-per-bag program is clearly the most effective approach. The results have important policy implications.

Freedom of Speech in Japan: An Inquiry into Media Ownership and Control

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