課程資訊
課程名稱
東亞比較憲法及政治專題討論
SEMINAR ON COMPARATIVE CONSTITUTIONAL LAWS AND POLITICS IN EAST ASIA 
開課學期
99-1 
授課對象
法律學院  科際整合法律學研究所  
授課教師
張文貞 
課號
LAW5029 
課程識別碼
A21EU2840 
班次
 
學分
全/半年
半年 
必/選修
選修 
上課時間
星期二7,8(14:20~16:20) 
上課地點
法研5 
備註
本課程以英語授課。本課程以英語授課。與大學部合開。與訪問教授David Law合開。
限學士班三年級以上
總人數上限:32人 
Ceiba 課程網頁
http://ceiba.ntu.edu.tw/991east_asia 
課程簡介影片
 
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課程概述

Constitutionalism has gradually taken root in East Asia. Constitutional review is now being performed in most, if not all, of East Asia by either courts o general jurisdiction or specialized constitutional courts. Traditional law school approaches to the study of constitutional law pay relatively little attention, however, to the interaction between constitutional adjudication and politics, or to the impact of this interaction on the development of constitutional law in East Asia. 

課程目標
This seminar seeks to explore the determinants and consequences of constitutional politics, with particular attention to Japan, South Korea, and Taiwan. It is hoped that seminar participants will acquire a theoretical framework and advanced understanding that will enable them to critically evaluate, if not also produce, scholarship in the emerging field of comparative judicial politics.  
課程要求
Students taking this course for credit will choose or be assigned three different topics (each roman numeral section of the syllabus constitutes a “syllabus topic”). For each syllabus topic that you choose or are assigned, you will write a paper that is not to exceed five pages in length. You may select a topic for your paper from the reading and discussion questions provided in this syllabus. You also have the option of writing on a different paper topic of your own choosing after obtaining prior approval from one of the instructors. The three papers will be weighted equally for grading purposes.

Because the success of the seminar format depends upon the contributions of all participants, your final grade may be adjusted to reflect the quality of your participation.
 
預期每週課後學習時數
 
Office Hours
每週二 13:30~15:00 
參考書目
References of books and articles are included in the weekly schedule. 
指定閱讀
Assigned readings are included in the weekly schedule.Each syllabus topic includes questions to guide your reading. In addition, for each specific reading, you should ask yourself the following questions:

- What question(s) does this reading attempt to address?
- Is the answer persuasive? Why or why not?
- What further questions does this reading raise for you? Can you phrase your questions in the form of testable hypotheses? How would you test these hypotheses?

You are encouraged to engage these questions in your papers and/or class discussion.
 
評量方式
(僅供參考)
 
No.
項目
百分比
說明
1. 
class participation 
40% 
 
2. 
papers 
60% 
 
 
課程進度
週次
日期
單元主題
第1週
9/14  Class Introduction 
第2週
9/21  I. What Is Comparative Judicial Politics?

What are the questions with which the study of comparative judicial politics is concerned? What are the questions with which it should be concerned? What, if anything, distinguishes the field of comparative judicial politics from that of comparative constitutional law?

- Shapiro, “Political Jurisprudence,” in Shapiro & Stone Sweet, On Law, Politics & Judicialization (2002)**
- Shapiro, Courts: A Comparative and Political Analysis (1981), ch. 1**
- Stone Sweet, “Constitutions and Judicial Power,” in Comparative Politics (Caramani ed., 2008)

 
第3週
9/28  II. The Nature of Judicial Power: A Comparative Perspective

What functions do courts perform? Are courts powerful? What is the basis of their power? What kind of power do they have? Are some types of courts – constitutional courts? courts in nondemocratic environments? – more or less powerful than one might expect?

- Milgrom, North & Weingast, “The Role of Institutions in the Revival of Trade,” 1 Econ. & Politics 1 (1990)
- Clay, “Trade, Institutions and Credit,” 34 Explorations in Econ. Hist. 495 (1997)
- Friedman, “Private Creation and Enforcement of Law,” 8 J. Legal Stud. 399 (1979)
- Shapiro, “The Success of Judicial Review and Democracy,” in Shapiro & Stone Sweet 2002**
- Law, “A Theory of Judicial Power and Judicial Review,” 97 Geo. L.J. 723 (2009)
 
第4週
10/05  continued discussion following last week 
第5週
10/12  III. Courts in Nondemocratic Environments

The questions from Part II remain relevant, but in addition, you might also consider the following. What functions do courts perform in authoritarian regimes? Are these functions fundamentally different from those performed by courts in a democratic environment? Why and under what circumstances might governments tolerate, and even welcome, judicial oversight of government action?

- Rule by Law: The Politics of Courts in Authoritarian Regimes (Ginsburg & Moustafa eds., 2008), intro, chs. 2 (Ginsburg), 4 (Hilbink), 5 (Moustafa), 13 (Shapiro)**
- Helmke, Courts Under Constraints: Judges, Generals, and Presidents in Argentina (2005), chs. TBA
 
第6週
10/19  continued discussion following last week 
第7週
10/26  IV. Judicial Independence: The Case of Japan

What do we mean by “judicial independence”? Independence of whom, and from whom? What kind of “judicial independence” is valuable, and why? What is the impact of institutional factors? political factors? on judicial independence?

- Law, “Judicial Independence,” in International Encyclopedia of Political Science (Badie et al. eds., forthcoming 2011)
- Stephenson, “The Political Foundations of Independent Judicial Review,” 32 J. Legal Stud. 59 (2003)
- Ramseyer, “The Puzzling (In)Dependence of Courts,” 23 J. Legal Stud. 721 (1994)
- Law, “The Anatomy of a Conservative Court: Judicial Review in Japan,” 87 Tex. L. Rev. 1545 (2009)
 
第8週
11/02  continued discussion following last week 
第9週
11/09  V. Constitutionalism and Judicial Review

What is constitutionalism? What are the preconditions of successful constitutionalism? What, if anything, is the proper role of constitutional courts and judicial review in a democracy? Do constitutional courts engage in judicial review against the wishes of a popular majority? Are they even capable of doing so?

- Law, “Constitutions,” in Oxford Handbook of Empirical Legal Research (Cane & Kritzer eds., 2010)
- Law, “The Myth of Imposed Constitutionalism in Japan” (draft 2010)
- Shapiro, “The Success of Judicial Review and Democracy,” in Shapiro & Stone Sweet 2002** (review)
- Whittington, “Constitutionalism,” in Oxford Handbook of Law & Politics (Whittington et al. eds., 2008)
- Hardin, Liberalism, Constitutionalism, and Democracy (1999), chs. 1, 3
- Graber, “Constructing Judicial Review,” 8 Ann. Rev. Pol. Sci. 425 (2005)
- Gardbaum, “Reassessing the New Commonwealth Model of Constitutionalism,” 8 Int’l J. Const. L. ___ (forthcoming 2010)
 
第10週
11/16  continued discussion following last week 
第11週
11/23  VI. Constitutionalism and Judicial Review: The Case of Taiwan
- Tom Ginsburg, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES 206-46 (2003)
- Wen-Chen Chang, 2005, The Role of Judicial Review in Consolidating Democracy: the Case of Taiwan, ASIA LAW REVIEW, Vol. 2, No. 2, P.73-88.
- Jiunn-Rong Yeh, Democracy-Driven Transformation to Regulatory State: The Case of Taiwan, 3(2) NTU LAW REVIEW 31 (2008).
- Wen-Chen Chang, 2009, An Isolated Nation with Global-minded Citizens: Bottom-up Transnational Constitutionalism in Taiwan, NATIONAL TAIWAN UNIVERSITY LAW REVIEW, Vol.4, No.3, p 203-235.
 
第12週
11/30  continued discussion following last week 
第13週
12/07  No class meeting this week; students are required to prepare for term papers 
第14週
12/14  VII. Constitutionalism and Judicial Review: The Case of South Korea
- Chung-Si Ahn, Transformation of South Korea Politics and Prospects for Democratic Consolidation, in POLITICS AND ECONOMY OF REGIME TRANSFORMATIONS: CASE STUDY OF SOUTH KOREA AND CENTRAL EUROPEAN COUNTRIES 23-40 (Chung-Si Ahn & Chon-Pyo Lee eds., 1999)
- Chong Jong-sup, Political Power and Constitutionalism, in RECENT TRANSFORMATIONS IN KOREAN LAW AND SOCIETY 11-32 (Dae-Kyu Yoon ed., 2000)
*The Constitution of the Republic of Korea (1987), reprinted in CHONGO CHOI, LAW AND JUSTICE IN KOREA: SOUTH AND NORTH (2005)
- Kun Yang, The Constitutional Court and Democratization, in RECENT TRANSFORMATIONS IN KOREAN LAW AND SOCIETY11-32 (Dae-Kyu Yoon ed., 2000)
- Tom Ginsburg, Rule by Law or Rule of Law? The Constitutional Court of Korea, in JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES 206-46 (2003)
 
第15週
12/21  continued discussion following last week 
第16週
12/28  VIII. The “Judicialization” of Politics: The Juristocrats?

Is judicial power expanding? If so, in what ways, and why? Is the expansion of judicial power occurring in conflict with the wishes of other political actors? With their blessing? Is judicialization inevitable or contingent?

- Stone Sweet, “Judicialization and the Construction of Governance,” in Shapiro & Stone Sweet 2002**
- Tate, The Global Expansion of Judicial Power (Tate & Vallinder eds., 1997), ch. 3
- Ginsburg, Judicial Review in New Democracies (2003), intro, chs. 1-4, conclusion
- Hirschl, Towards Juristocracy (2004), introduction, chs. 1-2, 6, conclusion

Optional:
- Ramos Romeu, “The Establishment of Constitutional Courts: A Study of 128 Democratic Constitutions,” 2:1 Rev. L. & Econ. 103 (2006) (large-n empirical support for Ginsburg/Hirschl hypotheses)
 
第17週
1/04  continued discussion following last week and conclusion