Judicial Politics in Non-­‐Democracies Legal Studies 190 Rachel E. Stern Spring 2014 Monday/Wednesday 4pm-­‐5.30pm Contact information Office hours Email: rstern@law.berkeley.edu Wednesday 2.15pm-­‐3.30pm1 Phone: 510-­‐664-­‐4985 Afternoons by appointment Office: 2240 Piedmont, #220 Course description This course investigates the reasons why authoritarian leaders devolve power to courts and the control strategies they deploy to keep judges, lawyers and plaintiffs in check. The course will mix more theoretical readings on approaches to law and the logic of courts with empirical studies of how law works in four settings: Nazi Germany, East Germany, China, and Russia. Throughout the semester, we will ask ourselves how world historical time (e.g. the rise of rights talk, the global trend increased judicial power) and regime type (e.g. military dictatorship, competitive authoritarianism, one-­‐party states) influence both the letter and the practice of law. In addition to scholarly books and articles, course materials will include original court documents as well as memoirs and films that illustrate how ordinary people experience the legal system. Readings The only required book for the course is Justice in Lüritz, by Inga Markovits. All other readings will be posted on Bspace. Optional readings are truly optional and will not appear on tests. Course requirements Grades and assignments. • Three blog posts: 15% (5% each) • In-­‐class midterm: 25% • Take home final: 40% • Class participation: 20% Blog posts. A class blog has been created at http://jpndberkeley.blogspot.com/ Each student is responsible for three blog posts (250-­‐400 words each) over the course of the semester. The blog sign-­‐up sheet is online at http://www.wejoinin.com/sheets/pdbmc, and you can sign up for your three posts anytime before January 29th on a first come, first served basis. 1 Sign up at www.wejoinin.com/rstern@law.berkeley.edu 1 These short, informal responses to the readings must be posted to the class blog by 4pm the day before class. Following a 30-­‐minute grace period, blog posts posted between 4.30pm and 11pm will be marked down a half grade. Blog posts posted after 11pm will not be accepted. The blog posts are meant to serve as a starting point for discussion for that day’s readings. A good blog post will be clearly written with a distinct voice and point of view. It can draw out points of connection and controversy between authors. It can draw connections between readings and current events. It can directly suggest questions for discussion. It can heartily critique (or enthusiastically endorse) articles, arguments or approaches. The content is up to you. The key point is to advance your own ideas rather than summarize. If you feel stuck, you can always fall back on the questions about the readings circulated before each class. In-­‐class mid-­‐term examination. A mid-­‐term examination will be held in class in March 12th. The mid-­‐term will consist of IDs and short answer questions. Final exam. The course will culminate with an open book, open notes final take home exam. The final exam will ask students to answer at least three conceptual questions that draw together readings across weeks and speak to themes of the course. Attendance and participation. 20% of the final course grade depends on participation. The basic starting point is regular class attendance and completion of the assigned readings before class. Beyond that, I expect students to thoughtfully participate in discussions, with the understanding that first-­‐rate participation corresponds to quality of comments rather than quantity. You can also participate by coming to see me in office hours, posting comments on other students’ blog posts, or occasionally circulating relevant news articles to our class email list. Please also keep in mind that the course may touch on sensitive, controversial or personal topics over the course of the semester. It is critical that we respect one another’s thoughts, and address comments to the ideas and arguments, not to the person. Discussions should be productive, respectful and appropriate. Attendance policy. Each student is entitled to two absences over the course of the semester, no questions asked. After that, absences will start to affect the class participation portion of the grade. Coming to class late will also be counted as .5 of an absence. Additional course policies Laptops and cell phones. Please do not take out your cell phone during class. In addition, the use of laptops in class is discouraged in order to create the best possible 2 environment for discussion. If you want to bring a laptop, I recommend using a plug-­‐in such as Leech Block (for Firefox) or Stay Focused (for Chrome) to turn off email and web access during class time. Getting in touch with me. The best way to get substantive feedback on your work or discuss class material is in office hours, rather than through email. Emails on administrative matters (setting up an appointment, asking for a recommendation etc.) will be answered quickly. I have office hours on Wednesday afternoon and I am also happy to meet with students by appointment. Students with disabilities. If you anticipate issues related to the format or requirements of the course, please let me know as soon as possible so we can work together to find a way for you to fully participate of the course. Course schedule Introduction: January 22 Class 2: Varieties of authoritarianism (January 27) Ian Buruma, “The Indiscrete Charm of Tyranny,” The New York Review of Books, May 12, 2005. Vaclav Havel, “The Power of the Powerless,” in Jan Vladislav ed. Vaclav Havel or Living in Truth (Faber and Faber, 1986), pp. 36-­‐57. Class 3: Visions of authoritarian law (January 29) Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge University Press, 2007), pp. 19-­‐56. Randall Peerenboom, China’s Long March Toward Rule of Law (Cambridge University Press, 2002), pp. 2-­‐6. Class 4: Visions of authoritarian law (February 3) Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (Transaction Books, 2001), excerpts. William Glaberson, “In Tiny Courts of N.Y., Abuses of Law and Power,” The New York Times, September 25, 2006. http://tinyurl.com/8sk26qv Class 5: Hitler’s Germany (February 5)—Lecture 3 Ernst Fraenkel, The Dual State (Oxford University Press, 1941), excerpts. Class 6: Cancelled—instructor out of town (February 10) Class 7: Special film screening and discussion. Class will run until 6.45pm. (February 12) In Class: The Lives of Others, directed by Florian Henckel von Donnersmarck (2006) Timothy Garden Ash, “The Romeo File,” The New Yorker, April 28 & May 5 1997, pp. 162-­‐171. [NO CLASS FOR PRESIDENT’S DAY ON FEBRUARY 17] Class 8: Courts in East Germany (February 19) Inga Markovits, Justice in Lüritz (Princeton University Press, 2010), Chapters 1, 2, 3, 4 and 6. Class 9: Courts in East Germany (February 24) Inga Markovits, Justice in Lüritz (Princeton University Press, 2010), Chapters 8, 9, 10. Class 10: Introduction to Contemporary China—lecture (February 26) Edgar Snow, Red Star Over China (Grove Press, 2007), pp. 35-­‐29. 90-­‐96, 119-­‐125, 219-­‐ 226. Mao Zedong, “On the Correct Handling of Contradictions Among the People,” in Stuart R. Schram, The Political Thought of Mao Tse-­‐Tung (Praeger, 1963), pp. 236-­‐242 Class 11: Chinese courts (March 3) Ethan Michelson and Ke Li, “Judicial Performance without Independence: The Delivery of Justice and Political Legitimacy in Rural China,” 2012 working paper. Margaret Y.K. Woo, “Justice,” in Chris Ogden, Handbook of China’s Governance and Domestic Politics (Routledge, 2013), pp. 53-­‐66. Class 12: Chinese courts (March 5) Xin He and Yang Su, “Do the Haves Come Out Ahead In Chinese Courts,” Journal of Empirical Legal Studies (2013), pp. 120-­‐145. 4 Yang Su and Xin He, “Street as Courtroom: State Accommodation of Labor Protest in South China,” Law and Society Review (2010), excerpted. In class: Midterm evaluations Class 13: Mediation (March 10) Carl Minzner, “The Turn Against Legal Reform,” The Journal of Democracy (2013), pp. 65-­‐72. Colin S. Hawes and Shuyu Kong, “Primetime Dispute Resolution: Reality TV Mediation Shows in China’s ‘Harmonious Society,’” Law & Society Review (2013), pp. 739-­‐770. Class 14: Midterm (March 12) Class 15: Special film screening and discussion. Class will run until 6.15pm (March 17) In Class: Disturbing the Peace, directed by Ai Weiwei (2009) Evan Osnos, “It’s Not Beautiful: An Artist’s Take on the System,” The New Yorker, May 24, 2010. Optional: Murong Xuecun, “The Transparent Chinese,” The New York Times, November 17, 2013. http://tinyurl.com/lmdsqjj Class 16: Debates inside China (March 19) Cheng Li, “Introduction,” in He Weifang, In the Name of Justice: Striving for the Rule of Law in China (Brookings Institution Press, 2012). He Weifang, In the Name of Justice: Striving for the Rule of Law in China (Brookings Institution Press, 2012), pp. 128-­‐130. Zhu Suli, “The Party and the Courts,” in Randall Peerenboom ed. Judicial Independence in China: Lessons for Rule of Law Promotion (Cambridge University Press 2010), excerpts to be announced. Rebecca Liao, “China’s Constitutional Crisis,” N+1, November 18, 2013. Optional: Jeffery Prescott, “The Court Jester” [on He Weifang]. In Angilee Shah and Jeffery Wasserstrom, eds. Chinese Characters: Profiles of Fast-­‐Changing Lives in a Fast-­‐
Changing Land (University of California Press, 2012). Class 17: Judges, lawyers and state control (March 31) 5 Rachel E. Stern, Environmental Litigation in China: A Study in Political Ambivalence (Cambridge University Press, 2013), Chapter 5. Peter Solomon, “Authoritarian Legality and Informal Practices: Judges, Lawyers and the State in Russia and China,” Communist and Post-­‐Communist Studies (2010), pp. 351-­‐362 In class: Lawyers’ Loyalty Oath Class 18: Introduction to Contemporary Russia—lecture (April 2) Steven Levitsky and Lucan Way, “Elections Without Democracy: The Rise of Competitive Authoritarianism,” Journal of Democracy (2002), pp. 51-­‐65. “The Eye of the State: An Interview with Soviet Chief Censor Vladimir Solodin,” Russian Review (1997), pp. 581-­‐590. Class 19: Class canceled—instructor out of town (April 7) Class 20: Russian courts (April 9) Kathryn Hendley, “Business Litigation in the Transition: A Portrait of Debt Collection in Russia,” in Lawrence M. Friedman, Rogelio Perez-­‐Perdomo and Manuel A. Gomez eds. Law in Many Societies: A Reader (Stanford University Press, 2011), pp. 235-­‐241. Kathryn Hendley, “Varieties of Legal Dualism: Making Sense of the Role of Law in Contemporary Russia,” Wisconsin International Law Journal (2012), excerpts to be announced. Class 21: Russian courts (April 14) Lee Epstein, Jack Knight and Olga Shvetsova, “The Role of Constitutional Courts in the Establishment of and Maintenance of Democratic Systems of Government,” Law & Society Review (2001), excerpts to be announced. Clifford Levy, “Russian Mayor Irks Security Agency, and Suffers,” The New York Times, July 3, 2010. http://tinyurl.com/kuqolj8 Ellen Barry, “In Russia, Jury is Something to Work Around,” The New York Times, November 5, 2010. http://tinyurl.com/ksah2pe Class 22: Political trials (April 16) Keith Gessen, “Cell Block Four,” The London Review of Books, February 2010. 6 Neil Buckley, “One Day in The Life of Mikhail Khodorkovsky,” The Financial Times, October 24, 2013. http://tinyurl.com/mncbrto Maria Alyokhina, Nadezha Tolokonnikova, Yekaterina Smutssevich, “Pussy Riot Closing Statements,” N+1, August 13, 2012. Class 23: Pathways to Rule of Law? (April 21) Jordan Gans-­‐Morse, “Threats to Property Rights in Russia: From Private Coercion to State Aggression,” Post-­‐Soviet Affairs (2012), pp. 263-­‐295. Gordon Silverstein, “Globalization and the Rule of Law: A Machine that Runs of Itself?” International Journal of Constitutional Law (2003), pp. 427-­‐432, 436-­‐440, 442-­‐445. Class 24: Authoritarian constitutions (April 23) Excerpts from the Russian and Chinese constitutions Tom Ginsburg and Alberto Simpser, Constitutions in Authoritarian Regimes (Cambridge University Press, 2013), excerpts to be announced. Class 25: Are democracies different? (April 28) This American Life: Habeas Schmabeas, April 26, 2007. Available streaming at http://tinyurl.com/aayajxb In class: The Response, dir. Adam Rodgers (2008) Class 27: Taking stock (April 30) 7